Hayes

Action to enjoin defendants from diverting water from plaintiffs’ lands. Judgment for defendants. A new trial was granted; and this appeal is from the order granting a new trial.

The material allegations of the complaint are substantially as follows: That in 1869 the defendants constructed a water-ditch, known as the Rhodes and Fine ditch, conveying water from Tule River, a distance of about five miles, and being of an average width of eight feet on the bottom and one foot deep, and acquired rights to *393 water therefor to be used in irrigating their lands; that in 1876 the plaintiffs and others, “with the knowledge and consent of the then owners of said ditch and water rights (defendants and their grantors), and with the assistance of said owners, enlarged said ditch to a width of about sixteen feet on the bottom for a distance of about one mile from the head thereof, and deepened said ditch about one foot for a distance of about four miles from the lower end thereof; and about the same time, and with the knowledge and consent of the then owners of said ditch and water rights, and with their co-operation and assistance, extended said ditch about three miles farther in a…