Dorris

— Action to recover damages for the diversion of water, by the defendant, from plaintiff's water ditch, and to perpetually enjoin the defendant from diverting water from said ditch in the future.

•Judgment for defendant, and plaintiff appeals from the judgment, and from an order denying a new trial.

Plaintiff's ditch was completely constructed in 1887, and ran through the west half of the northeast quarter and east half of the northwest quarter of section 7, township 42 north, of range 13 east, Mount Diablo meridian, owned by F. S. Chapman. Before the construction of the ditch, Chapman, on June 1, 1885, by an instrument in writing, granted to plaintiff, “for value received," the right of way for the ditch through this land.

Thereafter, on December 7, 1885, before the ditch was constructed to or upon' this land, Chapman conveyed the land and appurtenances to the defendant. On the following day, December 8, 1885, Chapman executed to defendant an instrument in writing, purporting to sell, assign, and convey to defendant all his (Chapman’s) “right, title, and interest” in the ditch (describing it as then being constructed by C. G. Dorris), “ which interest is the right to have…