
    [No. 1844]
    A. A. MALMSTROM and JOSIE MALMSTROM (His Wife), Respondents, v. PEOPLE’S DRAIN DITCH COMPANY (a Corporation), Appellant.
    [143 Pac. 238]
    1. Waters and Watercourses — Irrigation Ditches — Injury erom Escaping Water.
    The injury to plaintiff’s premises from water being from percolation near the surface, regardless of defendant’s irrigation ditch, and from overflow caused by plaintiff decreasing the size of the ditch and lowering its banks, defendant is not liable.
    On rehearing.
    Decision reaffirmed.
    [For former opinion, see 32 Nev. 246.]
    
      Summerfield & Curler, for Appellant.
    
      C. R. Lewers, for Respondents.
   By the Court,

Talbot, C. J.:

After reargument and further consideration we feel constrained to adhere' to our decision as originally rendered in this case. Under the evidence disclosed by-the record and the facts appearing therefrom, as detailed in the opinion (32 Nev. 255-259, 107 Pac. 98), we are unable to escape the conclusion that the damage sustained by the plaintiffs was caused by their own acts and the fact that during the irrigating season the water percolated near the surface of the ground on their lots and in that vicinity, regardless of the ditch of the defendant. From the testimony of the plaintiffs it appears that they narrowed and deepened the ditch for a short distance on their land and leveled their land adjoining the ditch. The making of the ditch deeper on their lots than it was a little lower down would not materially increase its capacity, while narrowing it decreased its capacity. The facts that the water flowed over a break in the bank of the ditch lower down and stood from the break over the land away from the ditch, and up to and over the banks of the ditch on the plaintiffs’ lots, and that the water did not run over the banks on their lots before they disturbed the ditch, indicate that they lowered the banks. As the damage resulted from these conditions, which were caused by the plaintiffs, and from the water which percolated through the ground in the vicinity of the lots, so far as the record shows the defendant is not liable for damages.

The judgment will stand reversed and the cause is remanded for a new trial.  