Hill

— The plaintiff claims to be the owner of a ditch crossing certain mining claims of the defendant. In the course of defendant’s mining operations he washed away a portion of the ditch.

The action is for damages, with a prayer for an injunction to prevent future injuries. A jury trial was had, which resulted in a verdict for plaintiff. The defendant moved for a new trial upon several grounds.

*725 1. The complaint alleges as a part of the description of plaintiff’s ditch that it was excavated from a certain named point, to a point where a certain shaft had been sunk in the earth, two years before the commencement of the suit. The plaintiff’s witnesses testified to a ditch which did not reach the shaft, but ran from ten to forty feet below it. The defendant objected to this proof upon the ground that it described ánother and different ditch from that described in the complaint.

The variance was immaterial. There was sufficient in the description to identify the ditch, omitting that part which mentions the shaft as one of the termini. It appeared, moreover, that the ditch described by the witnesses was the only one then running water in that vicinity, and was the ditch washed away…