White v. Todd's Valley Water Co.

Burnett, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring. There are two errors assigned by the plaintiffs:

1. That the verdict was against the evidence.

2. That the Court erred in giving and refusing instructions.

In reference to the fact as to whether the ditch of defendants

had been enlarged so as to increase the flow of the water, the testimony was conflicting. The evidence fills some fifty-two pages of the transcript, and there was ample room allowed for the exercise of the discretion of the jury. It would be exceedingly difficult for any one to come to a satisfactory conclusion as to the real state of the case. And this uncertainty arises from the nature of the subject-matter, and the want of exact estimates at the time. We therefore cannot disturb the verdict upon the first ground assigned.

On the trial, the Court gave this instruction : “ In determining the quantity of water in the canon, appropriated by defendants at the time of the construction of their ditch, which is conceded to have been constructed prior to that of plaintiffs, you will ascertain their intentions from their acts, the manner in which their ditch was constructed, the plan of the work, the general size, etc.

“ They would not be limited to the quantity they have turned into their ditch in the first instance, unless by the general plan, size, and grade, of the ditch, it was not capable of carrying more water than xvas then diverted.

“Ifby reason of boulders or stones in the sides and bottom of the ditch, or irregularity in the grade at that time, it was not capable of conveying as much water as its general size would indicate, the defendants would have a reasonable time to adjust the grade and remove such obstructions, and then fill the ditch to its capacity. But if they continued to divert the quantity only that they originally turned into their ditch a sufficient length of time to indicate that they only intended to divert that amount, or failed for an unreasonable length of time to remove such obstructions or adjust the grade of their ditch, they would be limited to the amount thus directed, and the plaintiffs would be entitled to the residue.”

[445]The plaintiffs excepted to the giving of this instruction, and offered the following, which the Court refused to give, and the plaintiffs excepted: