Respondent plaintiff claims the sole use of the Tendoy ditch and the Moodie extension thereof, in which appellants Charles H. Webb and wife claim an interest. Appellants Malcolm claim rights in the Tendoy ditch only, not in the extension. Charles H. Webb and wife base their rights on adverse possession and a contract with Moodie who completed the extension for W.J. Webb. As to Webb and wife, respondent takes the position that there was no contract and their use was permissive only. The Malcolms evidently claim by adverse possession.
On conflicting evidence, which, while perhaps capable of sustaining different conclusions, was sufficient, the court found that Charles H. Webb and his wife had acquired no right in the ditch either by contract or adverse possession.
The Malcolms object because the court gave them merely the right to enlarge the Tendoy ditch at their own expense and then use it. In their answer and affirmative defense they asked that their rights be determined, and there was evidence justifying the court's award to the Malcolms and their pleadings were amended to conform to the proof.
The judgment is affirmed. Costs awarded to respondent.
Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.
Petition for rehearing denied. *Page 579