Milner

Defendant, tried for the murder of S. J. Darrah, was convicted of manslaughter. He appeals from the judgment and from the order denying him a new trial.

*172 The facts are presented without conflict upon any material proposition, and under them defendant’s counsel strenuously insist that the verdict is against the evidence.

Milner and Darrah were neighbors, living in Snow Creek canyon. Darrah’s was the lower ranch, and to reach his land Milner was obliged to pass through the land of Darrah. Milner had sold to Darrah this land, reserving in the deed a right of way across it, and reserving also from his water rights in Snow creek thirty inches for his own use. This water he was diverting, and had been for some years, by means of a flume and ditch, taking tEe water from Snow creek a short distance above his house. There is some slight evidence, but evidence of little consequence, of preexisting trouble between the two men. A witness testifies that about two years before he had heard the defendant say “that he had beat Darrah out of ten thousand dollars, and that he would beat the damned son of a bitch out of ten thousand dollars more before he got through.” The use of this…