State v. Frost

delivered the opinion.

The error, if any, of the referee in refusing to proceed with the taking of the testimony until his fees were paid or secured to be paid, was waived, because not urged in the court below. If the defendant desired further to pursue that matter, he should have adopted some proper proceeding for that purpose in the trial court, and thus given that court an opportunity to pass upon the question, and if the ruling was not satisfactory he could have brought the matter here for review. But, without some decision or request for a decision by the trial court, there is nothing for us to consider.

Upon the facts two questions arise: First, whether the relator complied with the decree by maintaining a tight dam below the head of his ditch, so as to prevent the water from flowing on down the stream; and, second, whether the defendant interfered with the flow of the water, so as to prevent the required quantity from coming down to the head of the relator’s ditch. These questions may properly be considered together.

J. M. Franklin testified that he assisted in the construction of a dam across the stream just below the head of the relator’s ditch in June, 1904, and'that such dam was absolutely tight; that after the dam was constructed there was no water in the stream'for some distance below, except seepage water; that the dam was maintained by the relator during the irrigating season, except on the occasion of a cloudburst, when it was washed out, but was immediately replaced; that he (witness) was at the head of relator’s ditch six or eight times between the 27th of June and the 9th of August, and assisted in measuring the water in. the stream at that place on the 27th of June and on the 9th of August, and there was only from 13 to 20 inches therein; that on the dates he measured the water he visited the defendant’s ditches above that of the relator, and found them “about as full of water as they could hold,” and “had twice the amount of water that was in Mr. Glaze’s ditch”; that during one of his visits, he saw defendant putting a dam across the creek at the *239head of his ditch, so as to divert the water from the stream into his ditch. P. J. Morrison testified that he was present when the water was measured at the head of the relator’s ditch on June 39th and on August 8, 1904, and there was only 15 inches on the first and 14 inches on the latter occasion; that there was no water below the dam for 300 or 400 yards where there was a small quantity on the bed rock, but not sufficient to form a continuous flow; that on the 39th of June the defendant’s ditch was running full and carrying more water than relator’s. Fin-lay* Morrison and the relator testified to practically the same state of facts as the other witnesses, but it is unnecessary to refer to their testimony in detail. This evidence is uncontradicted, and shows clearly a substantial compliance by the relator with the decree of the court by constructing and maintaining a sufficient dam below the head of his ditch, and that the defendant diverted the water to the injury of the plaintiff and in violation of the decree and restraining order. The judgment of the court below will therefore be affirmed.

Arrirmed.