Hart

This is a suit for trespass on plaintiff’s land. The defendant Mrs. Hoyt justifies under an alleged prescriptive right to the use of a ditch across plaintiff’s place as a conduit of water to her lands, and a right of entry for repairing the same. The other defendants justify as her servants. The case was tried by a jury, whose verdict was for defendants, and judgment was accordingly entered in their favor. The plaintiff appeals from the "judgment and from an order denying his motion for a new trial. The main question involved is as to the sufficiency of the evidence of Mrs. Hoyt’s alleged right of entry to justify the verdict. The plaintiff’s lands lie to the eastward of those of Mrs. Hoyt, and the ditch in question runs westerly through the lands of the plaintiff, and at the present time to and upon her lands. Formerly, according to the testimony of plaintiff’s witnesses, the ditch did not quite reach the land of Mrs. Hoyt; but there is evidence tending to show the contrary. There is also evidence tending to show that Mrs. Hoyt is the owner of water from the,Shasta river, flowing in a ditch to the eastward of plaintiff’s lands, known as the Miller, Casedy and Hoyt ditch, which…