Ball

The complaint alleges, in substance, that the defendant had by means of a canal appropriated the waters of a certain creek for the purpose of *506 operating a mill owned by him, and that, subject to the use and right to use said water by the defendant, the plaintiff has for twelve years last past appropriated and used adversely to defendant, for irrigation, agricultural, and domestic purposes, the water so flowing in said canal whenever the said mill was not being run; that upon August 10, 1888, while the said mill was not running, the defendant without right deprived plaintiff of the use of said water, and has ever since continued to deprive plaintiff of its use; and that “ defendant threatens so to deprive plaintiff of the use of any of said water at all times, even when said mill is not being run or operated, nor said water needed for running or operating the ■same.” The answer of the defendant contained a denial of these allegations.

The court below rendered judgment in favor of the plaintiff, and enjoining the defendant from depriving plaintiff of the use or flow of the water of said canal except at such times as said water may be needed and actually used for running and…