1. The official report in this case shows the nature of the pleadings, the evidence and the grounds of the motion for a new trial. "We have carefully examined this record and have failed to find any error committed by the court below against this plaintiff in error. The evidence in the case more than sustains the verdict of the jury. Upon a careful reading of the evidence, we are inclined to think that the verdict is too small — that *72the jury should have found the whole amount, principal and interest, against the defendant in the court below, instead of deducting the interest from the claim. While the evidence shows that the defendant purchased from the plaintiff the two lots of land and the ditch which brought the water through the land, and that he was deprived of the use of the water by one Barlow, who had recovered it from him in another suit, the evidence further shows that at the time he purchased the land and the ditch from Furtzwangler, he gave Furtzwangler a release from his warranty in the deed so far as the ditch and the water were concerned; stipulating in the release that he only held Furtzwangler liable on his warranty in the event that the stockholders of the Pigeon Roost Gold Mining Company should deprive him of the use of the ditch and the water. The evidence does not disclose that Barlow was one of these stockholders of the Pigeon Roost Gold Mining Company. Barlow, who had recovered this ditch and water from White, the defendant in the court below, not being one of the stockholders of the Pigeon Roost Gold Mining Company, Furtzwangler was not liable to the defendant, White, for any injury or damage sustained by him by reason of Barlow’s depriving him (White) of the use of the ditch and the water. White took the risk when he purchased, and released Furtzwangler from his warranty against all persons except the stockholders of the Pigeon Roost Gold Mining Company. He therefore had no warranty from Furtzwangler against Barlow or any one else except the stockholders of the Pigeon Roost Gold Mining Company. Having released Furtzwangler from his warranty, except as to these stockholders, and Barlow not being one of them, and Barlow having ejected him or deprived him of the use of the ditch and water, he was not entitled to set up *73this loss of the use of the ditch and water against Eurtzwangler.
2. There was no error against the plaintiff in error in the charge complained of in the motion for a new trial. If there was error in the charge complained of, it was against the defendant in error, because it seemed to take away from the consideration of the jury the written release of "White to Eurtzwangler, and place the issue as to the risk of the deprivation of the ditch and water upon the parol testimony of the witnesses.
Judgment affirmed.