Denver, Texas & Fort Worth Railroad v. Dotson

Mr. Jtjstice Goddard

delivered the opinion of the court.

The errors relied on for a reversal of this judgment are: First, the refusal of the court to give certain instructions prayed for by appellant, which present as matters of defense the validity of appellee’s appropriation of the water in question ; 1st, for the reason that the canon from which the appropriation was made was not a running stream; and, 2nd, because of a failure on his part to file a map and statement, as required by section 2265 of Mills’ An. Stats. And, second, because of the refusal of the court to instruct that the measure of damages was the outlay and expenditure plaintiff would be put to in constructing another ditch, or in procuring water for irrigating his land from any other source.

So far as the first objection is concerned, we think the appropriation was a valid one under section 2269 of Mills’ An. Stats. The second is not tenable for two reasons: 1st, there is no testimony tending to show that the ditch in question was of the character contemplated by section 2265, and of which the owner is required to file a map and statement, as therein provided? and, 2nd, the object of that provision being for the purpose of fixing priority of appropriations, the want of such a recoi'd cannot be invoked by appellant to justify its destruction of a ditch owned by and in the actual occupation and use of appellee. The court, therefore, committed no error in refusing to instruct the jury as prayed for by appellant in this particular. We think the court correctly instructed the jury as to the measure of damages, and the instruction prayed for by appellant was properly refused. It appearing from the uncontradicted testimony in the case that appellee located the ditch in question on the public domain, the land acquired by Rinker from the government subsequently thereto was subject to such easement, and his deed to appellant conferred no right upon it to interfere with the same. And it being admitted that by its act it destroyed the ditch, we think *307 the court correctly submitted the question of the amount of ' damages to the jury as the only issue in the case, and they, under proper instruction, having decided that issue upon the testimony introduced in favor of appellee, their finding is conclusive, and the judgment thereon cannot be disturbed. The judgment is accordingly affirmed.

Affirmed.