Joseph

This action was -for an injunction to restrain defendant from interfering with a certain ditch dug by plaintiff on the land of defendant, and for damages alleged to have been caused by the filling up of part of said ditch by defendant. The verdict and judgment were for defendant; and plaintiff appeals from an order denying his motion for a new trial.

The appellant owns land on a natural watercourse called Willow creek, and respondent owns land on said creek adjoining and immediately above said land of appellant; and for many years appellant and his predecessors have exercised the right of maintaining a ditch up-through a part of respondent’s land in which they have carried water from the north side of said creek down to-their said land. As, owing to the nature of the creek,, it was difficult to keep the head of the ditch always at. the same place, they, during the years prior to 1890,. several times extended the ditch somewhat farther up-the. creek, but always keeping on the north side. But,, from the effect of a freshet in 1890, the creek changed its course, leaving its ancient channel at a point above-the land of respondent, and running through the latter’s-land in a channel…