Allen

This is an appeal from a judgment upon the pleadings.

The only material facts alleged in the complaint, and not denied by the answer, are: 1. The ownership of the *139 land; 2. The defendants have placed pipe upon plaintiffs’ land preparatory to laying the same permanently in a ditch across said land.

Defendants’ answer alleges that “it is the owner of a certain ditch across plaintiffs’ land used for the purpose of carrying water to its (defendants’) land for the purpose of irrigation; that the pipes to be laid are of no greater carrying capacity than its said ditch, and when so laid by defendants, will render the use of the easement less burdensome to plaintiffs’ servient estate, and more convenient to defendants; that no damage has been done to plaintiffs’ land, and no damage or trespass threatened or intended.” Defendants also set out the facts showing title to the ditch and water by adverse user.

Upon these facts, judgment was rendered for plaintiffs for a perpetual injunction restraining the defendants from laying the pipe, and this is an appeal from such judgment.

The principal question in this case is, whether an easement to run water over plaintiffs’ land in an open…