Parker

— This is an action for damages and an injunction. The court below gave judgment for the plaintiff, and the defendant appeals on the judgment roll. The facts found are, in substance, as follows: The plaintiff and defendant own adjoining'tracts of land in Santa Clara County, the plaintiff’s tract lying north of defendant’s. Both tracts are adapted to and are used for agricultural purposes. They are nearly level, but there is sufficient slope, so that water will flow from the land of defendant to and upon the land of plaintiff. The defendant raises alfalfa on his tract, and in order to do so, it is necessary that the ground be irrigated two or three times during the summer. He has two artesian *237 wells upon the upper end of the tract, which are so capped that the water can be shut off, or permitted to flow, at his pleasure. He has also excavated along the north side of his land, and two or three feet from the plaintiff’s south line, a shallow ditch, which is several hundred feet long, and has no outlet or drain from either end. In excavating this ditch, the earth was thrown up on the north side thereof, that is, between the ditch and the plaintiff’s line. When he wishes to…