Opinion by
1. A careful examination of the evidence leads us to the conclusion that the court very properly found that there was an agreement, by the terms of which the plaintiffs, in consideration of their labor and expense in constructing the ditch, should have the right to appropriate one half the water conducted therein, for the purpose of irrigating their lands; and hence the principal question to be considered is whether the defendant, by not appropriating the water till eighteen hundred and ninety, had abandoned all his interests therein. The ditch having been constructed under an agreement between the parties that each should be entitled to appropriate his share of the waters of Carter Creek, rendered the parties tenants in common of the ditch and right of appropriation, and the defendant’s property rights must
2. Examining the evidence from which an inference of the defendant’s intention to abandon the appropriation is to be deduced, we find that in the spring of eighteen hundred and eighty-two he dug a short ditch about one mile above his land, and built a dam in Carter Creek, by means of which he turned a portion of the waters of that stream into a slough, from which he constructed a ditch and recaptured the water thus diverted. With this, and water diverted from Sucker Creek, which he tapped by another ditch, he was enabled to irrigate that portion of his land lying east of Carter Creek, and, after having reduced the same to cultivation, he, in eighteen hundred and ninety, commenced to improve the tract on the west side of said creek. It is manifest that from the time the defendant appropriated the water, until eighteen hundred and ninety, he had exercised due and reasonable diligence in reducing his land lying east of Carter Creek to cultivation. He had in that time changed an arid sage brush plain of about one hundred acres into a productive farm, and, having succeeded in providing sufficient water for the irrigation of his land lying east of the creek, he immediately turned his- attention to the improvement of
3. The evidence also shows that the plaintiffs neglected to repair the ditch, in consequence of which it became obstructed, causing an overflow of water on the defendant’s land, which washed out quite a gully therein. This, no doubt, precipitated the difficulty, and caused the defendant to take out the headgate and fill the ditch, thereby preventing the water from flowing to the plaintiff’s lands, for which injury the court rendered a judgment against the defendant for fifty dollars as damages. In our view of the case, the defendant was equally liable with the plaintiffs for the expense of keeping the ditch in repair, and the failure of the latter to keep up repairs
Modified.