Jensen

Cornelius Jensen died December 12, 1886, seised of the lands described in the complaint, and plaintiff brings this action, as his executrix, to quiet the title of the estate thereto. The only controversy between the parties relates to an alleged water right and right of way for a ditch claimed by defendants over said lands. The court found in favor of defendants, establishing their right to the water and ditch, and plaintiff appeals from the judgment entered thereon, and from an order denying her motion for a new trial.

The water in question rises above plaintiff’s land, and flows through it in a natural stream or watercourse. About four years prior to 1882, the water was diverted by one Kelting at a point above plaintiff’s land, and conducted by a ditch to his land, which is now owned by the principal defendant, Margaret Scott, who was formerly the wife of said Kelting. The point of diversion was then upon the land of one Evans, who, in 1882, refused to permit Kelting to longer take the *85 water out upon his land. Whether any part of the ditch, as it then existed, was upon plaintiff's land does not clearly appear. Jose Jensen testified that “it might have crossed a corner of…