Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-11-15
Benjamin Curler,
OPINION
BY B~Onnifield, G. J.

BY BOnniticId, CD.
This is an appeal from Il judgment and
decree given against defendant and in
favor of the plaintiff, N ! from AT order
denying defendants motion for a new
trial. The judgment is for costs of suit.
By the decree, the defendant, her agents,
etc. "are perpetuallv enjoined and re-
strained from allowing any water to flow
in her ditch, designated in the pleadings
and evidence in said cause as the 'Blais-
dell ditch until said defendant, Mrs. J.
A. Blaisdell, first restores the box in the
said ditch at the same place it occupied
when removed by the said defendant,and
from allowing more water to flow in said
ditch than it will safely carry
1t is specified in the statement on mo-
ton for new trial that the court erred in
making certain findings of fact for the
plaintiff, and in refusing to make certain
findings asked for by the defendant, and
counsel for appellant makes a lengthy
written argument thereon. But neither
the said findings 50 made nor the pro-
posed findings so refused are embodied
in the statement on motion for new
trial and are, therefore, no part of the
record on appeal. This rule is Sc we'll
settled that it is not worth while to cite
authorities.
Appellants counsel contends that the
only issue in the case is, "as to whether it
was the duty of respondent, or the appel
liant to place the boxes in said ditch and
keep them in repair" To this issue we
direct our attention. 1t appears that at
one time the appellant was the owner OF
a certain eighty acre tract of land now
owned and occupied by the respondent
and also of another tract adjoining sale
eighty acre tract which latter tract the
appellant still owns and occupies, 1t APP
pears that in 1872 by a conveyance from
the appellant the respondent became TIL
owner of the said eighty acre tract, anC
on the first day of January, 1873, respon
dent moved thereon, and ever since ha
been the owner and occupant thereof. |
appears that some time prior to said con
veyance the appellant constructed an If
rigation ditch now called the "Blaisdel
ditch which ran through said land con
yeyed to res pOndent and on down to tn
land that appellant still owns and occu
pies, for the purpose of irrigating the lat
ter land. 1t appears that the course {
said ditch ran by and along the front sid
of the dwelling house, then and eve
since situated upon the land now Owne
and occupied by the respondent, and dis
tant therefrom, TIVE to six feet; that tn
said course of said ditch has not bee
changed and that said house is, and h.
been respondents dwelling house eve
since she moved on her said land in lS7
As to the dimensions of said ditch whe
first constructed by appellant, which
seems was in 1868, or Whereabouts, the tie
timony is conflicting. There is evident
on the part of the respondent tending
show that at that time it was but frOl
fifteen or sixteen inches wide and seve
or eight inches deep and so remained fC
number of years after the responder
became the owner and occupant of ht
said land and premises, and up to IL
year 1881 or 1882; that the appellant
said year 1881 or 1882, and from time
time thereafter, and against the consel
and express protest of the responder