Gray

— Action to remove and abate as a nuisance an enbankment or levee, erected by defendant upon his own land, but which held back and caused water to flow upon the land of plaintiff, and to recover damages for injury caused thereby. Plaintiff had judgment, from which and from an order denying a motion for a new trial defendant appeals.

The plaintiff, Mary Gray, has been since 1888 the owner in fee in her own right, and in possession of a tract of land consisting of over forty acres, situate in the county of Colusa.

The defendant, A. S. McWilliams, is and since September, 1887, has been the owner of and in possession of a tract of land of over two hundred acres, lying south of and adjoining plaintiff’s land for a distance of eighty rods.

Upon the dividing line, between the land of plaintiff and defendant, is a roadway or avenue fifty feet wide, known as “Fruitvale Avenue.” Upon the center of this avenue is an enbankment, constructed in 1884 by the grantors of plaintiff and defendant, for the double purpose of a roadway, and as a check to hold water for irrigation purposes. This enbankment, which runs east and west, if maintained in tact throughout its length prevents the water…