Forrester

It is alleged in the complaint in this action that in May, 1886, the defendant wrongfully excavated a water-ditch upon and across the east half of the east half of section 19, township 1 north, range 5 west, San Bernardino base and meridian, then and now the property of the plaintiffs. The prayer of the complaint is, that defendant be enjoined perpetually from maintaining or using the ditch upon the land described, and that the ditch be abated, etc. Judgment passed for the defendant, and plaintiffs appeal from the judgment, and from an order denying their motion for a new trial.

■ The court found that the plaintiffs were never the owners of nor entitled to the possession of the land described, or any part thereof. Whether or not this finding is justified by the evidence is the only question presented or necessary to be considered on this appeal.

The plaintiffs claim title to the land under a grant of the United States to the Southern Pacific Railroad Company on March 3, 1871, evidenced by the twenty-third section of an act of Congress of that date, entitled “ An act to incorporate the Texas Pacific Railroad Company, and for other purposes.” (16 Stats, at Large, 573.) This grant…