On Petition for Rehearing.
(178 Pac. 796.)
Appellants file petition for rehearing. Denied.
Mr. Ralph W. Swagler, Mr. William H. Brooke and Mr. G. McGonagill, for the petition.
Mr. William E. Lees, contra.
In Banc.
BURNETT, J.The petition for rehearing presses upon our attention a construction of the evidence which the defendants claim shows that they have a prescriptive right superior to that asserted by the plaintiff for the disposal by drainage of the surplus water in their irrigation operations. A consideration of jhe pleadings, however, renders it unnecessary to enter upon a new discussion of the testimony.
The plaintiff says in substance that it has constructed a drainage ditch which it describes, and that without any right thereto the defendants have persisted in using it as a depositary of the drainage from their lands, against the will and consent of the plaintiff, whereby the plaintiff is damaged. The defendants deny all the allegations of the complaint. They *246then set up their ownership as individuals of certain tracts of land and claim that for a long period of time covering more than ten years they have enjoyed and used a natural drainage way from their lands in the northwest quarter of section 8 mentioned in the complaint, to and upon section 5. They do not state, however, that this natural drainage way of which they speak is identical with the ditch referred to in the plaintiff’s complaint, nor do they charge that the plaintiff has interfered with their conduit. Neither do they plead any right whatever to use the ditch of which the plaintiff claims to be the owner. In other words, each party has pleaded the ownership of a water-way, the plaintiff an artificial one and the defendants a natural one. Neither claims that the two are identical.
Under their denials, the defendants could show that they did not do the acts complained of by the plaintiff. If they claimed any right to use the plaintiff’s ditch they should have pleaded it. In short, so far as the pleadings show, the defendants do not claim any right in the water-way of the plaintiff; neither does the plaintiff assert any right in the natural water-way used by the defendants. On the trial of the general issue, however, there was evidence to support the finding that the defendants were discharging their drainage into the plaintiff’s ditch. Hence the injunction was properly granted and the motion for rehearing must be overruled.
Affirmed. Rehearing Denied.