Year: 1874

ant while he, Brown, was in possession of the property now claimed by the plain tiffS, that one-fOurth of the water flowing in the ditch was the property of Degrallo, and used the inducements alleged to ln- duce the defendant to go there and settle, and defendant relying on his representa- tiOn did so go to that valley and enter upon the possession of the ranch and wa ter-right under and by virtue of any alleg- ed purchase or agreement with Brown or Brown and PostIe from or with Degrallo, these plaintiffs are estOpped, as Brown him self would be if he were the plaintiff in this action, from denying such right Of de- fendant to One-fOurth interest in the water right forever after, and this if DegrallO never had any right or interest in the prop erty, whatever, or if there was no such man in being. The whole of this eXcep- tion must be taken together with the evil dence to which it refers, in estimating it's. legal effect. On recurring to the testi-

 mOny, we find that the defendant took

 possession of his ranch and one-tOurth of the water now in controversy in March,

 1887, and has ever since used and en-

 joyed both; and that the deed of Degrallo

 to defendant was recorded April Il, 1867.

 Browns deed to Schneider is dated No

 vember, 1867. Schneider's deed to Camp

 bell, one of the plaintiffs, and Buffum, is

 dated August, 1868; and CampbelPs deed to

 Baker, the other plaintiff, is dated March,

 1872. The only principle upon which

 O

 can deny the binding effect upon them of

 Browns declarations concerning the wa

 ter to the defendant, would be that they

 had no notice of them. In respect to this,

 the presumption of law is that Campbell

 and Baker exercised ordinary diligence in

 ascertaining the conditions and relations

 of their ranch, at the time they took pos

 session in November, 1867, and in March, 1872. The law requires of them ordinary diligence in all such matters as this water n w

 ed. The law will hardly take from the de- fendant his ditch-Water and give 1t to the plaintiffs in pity or approval Of their self imposed ignorance at the time they pur- chased tke ranch. The opinion further proceeds to examine the evidence on this point and concludes: If this court had any doubt of the conclusion above stated, the defendants right could be maintained

 oh the ground of paid license. It has nOne however, and this exception must be Overruled.

 The fifth and last exception is as follows: The court erred in it's charge to the jury

 that there must be a prepOnderance of ev- idence in favor of plaintiffs to entitle them

 to recover" The proposition thus except ed to would seem so aXlOmatlc as to dety either question or discussion. If in any 1 case the evidence should be equal on one | side and on the other, how could the jury | find verdict at all? The jury would be compelled to agree to disagree in such a

 

 l cases such as this, if they actually do Oc- | cur, it is the highest duty of the jury to dis l agree. To enable @ jury therefore to find | a verdict at all in any case in which there 1 is a conflict of testimony, there must be a prepOnderance of evidence in favor of one | side, and the jury must find it as cOndi- l ton precedent to the rendition of their | verdict. That the judge thus stated tru-

 ism to the jury, on the trial of this cause, | is no matter of successful exception, and | this exception is accordingly Overruled. | The exceptions of the appellants thus

 all fail and there is nothing else in the rec

 ord to show why the judgment inths case

 should not be affirmed. This conclusion, | it is submitted, if there were any doubt ot 1 it's legality, could be sustained on the evi- ! dence which the case presents of parOl l license to the defendant of the water-right l in controversy. And the same conclusion

 is reached by another most simple process | of investigation. It was found as pre- l sum ption of fact in the statement of this case that the defendant was located high 1 CT up on the ditch and nearer the source | of water-supply than the plaintiffs; and also as another presumption of fact that l his location was therefore older than | theirs. By a very simple deduction, the

 legal conclusion therefore is "prior in tenn

 perception in jure," in the absence of all | sufficient evidence to the contrary, that

 the defendants right is better than that Oi

 the plaintiffs. The judgment of the court

 below in the present case is therefore here by affirmed.