Crooker

This is defendant’s appeal from the judgment and an order refusing a new trial.

The action is to determine the right to one third of the water flowing is a certain ditch. The plaintiff claims the water as appurtenant to a certain tract of land purchased by him from one D. G. Miller. The defendant claims to have purchased from Miller his interest in the ditch, after Miller had conveyed the land to plaintiff. If the water right was appurtenant to the land, plaintiff must prevail; otherwise the defendant.

It appears that in 1883, W. T. Hurtt, L. A. Crooker, and said D. G. Miller were each in possession of a quarter-section of land in section 28, etc. An old flume ran through this section, formerly used to float lumber. Water continued to run there, and the owners of the flume, having no use for it, suffered it to be taken out by settlers for domestic and irrigation purposes, and it was so taken by Hurtt, L. A. Crooker, and Miller.

*367 The flume decaying, Hurtt, L. A. Crooker, and Miller agreed to appropriate a portion of the water of Digger Creek, which had supplied the flume, and accordingly posted, at the point of intended diversion on Digger Creek, a notice, as required by the…