Jatunn v. O'Brien

Vanclief, C. — The sole object of this action is to obtain a perpetual injunction against the defendants, restraining them from enlarging a water-ditch running through plaintiff’s land. The case was tried by the court, and as a result of the trial, an injunction was granted restraining defendants from enlarging their ditch to a greater capacity than twelve inches in depth, fourteen inches in width on the bottom, and twenty inches [59]in width at the top, with a carrying capacity of 123 inches of water measured under a pressure of six inches.

Defendants moved for a new trial, on two grounds: 1. “That the decision of the court giving judgment for the plaintiff is against law”; and 2. “On account of errors occurring at the trial, and excepted to by the said defendants.” The motion was made on a bill of exceptions.

The court denied the motion, and defendants appealed from the judgment, and from the order denying their motion.

The findings show that the lands of plaintiff through which the ditch runs consisted of eighty acres, to forty acres of which he acquired title by patent from the United States on July 20, 1874. The other forty acres were conveyed to him by the Central Pacific Railroad Company on December 20, 1884, having been patented to the railroad company April 30,1884. “ That prior to 1862 there had been constructed on, over, and across the lands herein described (plaintiff’s lands) a ditch known as the Camp Far West Ditch; that the same was used up to the year 1866, at which time the further use of the same was discontinued, the ditch was allowed to go to ruin, became filled up, and the flumes thereon allowed to rot, fall down, and in places to be carried away by strangers,” and “was totally unused from 1866 to 1873”; that in May or June, 1874, and before plaintiff acquired title to any part of his land, defendants entered upon the ditch and cleaned it out and reconstructed it to the size and capacity above stated, viz., twelve inches in depth, fourteen inches in width on the bottom, and twenty inches at the top, with a carrying capacity of 123 inches of water measured under a pressure of six inches, and in that condition and to that capacity only, used and conveyed water through it for irrigating purposes until 1888, when they commenced the enlargement of it complained of, and to enjoin which this action was brought.

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