Temple, J., delivered tbe opinion of tbe Court:
Tbe complaint in tbis action is in tbe form of trespass, to recover damages for tbe negligent use of water in the irrigation of defendant's premises, by reason whereof water overflowed tbe lands of plaintiff, and greatly damaged him.
Tbe statement of tbe evidence is not very clear to one not already familiar with tbe situation of tbe premises, and we are not perfectly sure that we correctly apprehend tbe facts of tbe case. It appears that tbe plaintiff and defendant own adjoining places in Los Angeles, and were in tbe habit of irrigating their lots from tbe zanja or public water works of tbe city. That a small flume led from tbe zanja, partly over tbe lands of plaintiff, to tbe premises of tbe defendant, and was used by both parties for purposes of irrigation. That tbe plaintiff bad cut a notch in tbe side of tbe flume, from which be was in tbe habit of taking out water, closing up tbis gate or notch when be was through with tbe water. On tbe occasion of tbe injury complained of, tbis notch or gate bad been left open by plaintiff, contrary to bis usual custom.
Tbe defendant, having occasion to use tbe water, purchased tbe right from the zanjero, or person in charge, and let tbe water from tbe zanja into tbis small flume and upon bis own premises. He did not observe that tbe flume was open at tbis notch so as to let tbe water upon tbe premises of plaintiff, and be did not look to see whether it was open or not. He let tbe water in about 12 o'clock M. and did not observe water upon tbe plaintiffs' premises till some time after tbe middle of tbe afternoon, and then did not know where it came from. It was also proven that tbe plaintiff was in tbe habit of opening tbis notch while tbe defendant was using tbe water, and helping himself to what water be desired. There was some evidence tending to show that water was backed up and made to overflow tbe top of tbis flume in consequence of tbe defendant's having closed a gate in tbe flume on bis premises, but tbis only raised a conflict in tbe evidence.
*125From tbis statement it appears tbat tbe negligence of tbe plaintiff in leaving tbe notch upon bis premises open, contributed proximately to tbe injury complained of. Tbe defendant could not, under tbe circumstances, be beld liable, unless tbe injury was tbe result of a wanton or willful act on bis part. Tbe evidence does not clearly show tbat be knew tbat be was causing an injury to tbe plaintiff, and we cannot, therefore, disturb tbe judgment rendered in bis favor.
Judgment and order affirmed.