delivered the opinion of the court,
McBeide, O. J., and Smith, J. concurring.This action was instituted bj one co-tenant against the other co-tenants, to recover his portion of the value of the water flowing in a ditch leading from Lewis’ Gulch, in Boise county, and owned jointly by plaintiff and defendants.
The only point relied on to reverse the judgment is because the court below refused to instruct the jury “that if they believed from the evidence that plaintiff told defendants to take the water and use it for their pay, and in pursuance thereof defendants did take it and use it, they should find for defendants.” The defendants' do not set up any such contract in their answer, but expressly deny that they ever entered into any contract, or are in any manner indebted to plaintiff for his portion of said water.
The instruction was entirely foreign to the pleadings, and was not warranted by the evidence. It was therefore properly refused.
Judgment below is affirmed.