Locke

This is an action to recover damages for injury to the land of the plaintiff by construction of levees, which are claimed to have obstructed the natural flow of water, and for a judgment that the levees, dams and embankments of defendants be abated as a nuisance. Plaintiff had a verdict as follows: “We, the jury in the above-entitled cause, find for the plaintiff in the sum of fifteen hundred ($1,500) dollars, caused by the repair and maintenance of levee No. one (1) by the defendants.” Plaintiff thereupon waived all right *694 to a decree abating the nuisance complained of, and judgment was rendered in his favor on the verdict for fifteen hundred dollars, and costs. Defendants appeal from the judgment and from an order denying a new trial.

Plaintiff is the owner of certain lands lying and being on and near the Mokelumne river. Defendant Holman owns land below and west of and adjoining that of plaintiff, and defendant Locke owns land still west of that of Holman. The land of plaintiff has a gentle slope to the southwest. A slough puts out of the river near the northeast corner of plaintiff’s land, passes through it in a general southwesterly direction, having some branches and…