Yocco

Action to recover damages for alleged wrongful diversion of water by defendant from plaintiff’s water-pipe, through which he conducted water to his land for the purpose of irrigation; and also to enjoin the defendant from diverting such water perpetually. The cause was tried by the court without a jury, and the judgment was in favor of the defendant. The plain *469 tiff brings this appeal from the judgment on the judgment-roll, and contends that, upon the facts found by the court, the judgment should have been in his favor.

The material substance of the facts found is as follows: In February, 1881, the defendant owned and resided upon a tract of land through which ran a living stream of water called a gulch; and at the same time plaintiff owned an adjoining tract of land, no part of which adjoined or included any part of the stream or gulch. On February 12, 1881, the defendant, by a grant, bargain, and sale deed, conveyed to plaintiff one square rod of land at a certain point in said gulch, through the center of which square rod said stream ran; and by the same deed granted to plaintiff a defined right of way for a water-pipe of one-inch diameter, from said square rod of land to…