
    [Civil No. 167.
    Filed August 2, 1886.]
    [S. C. 11 Pac. 397.]
    ELIJAH CLIFFORD et al., Plaintiffs and Respondents, v. L. LARRIEU, Defendant and Appellant.
    1. Irrigation—Action for Wrongful Diversion—Parties—Water User Though not Ditch-Owner May Maintain Action for Wrongful Diversion—Ditch-owner not Necessary Party Plaintiiff.—The owners of land irrigated by means of a ditch owned by another person, or a corporation, may have an action against one who wrongfully diverts water from the ditch.
    2 Same—Ditch-owner has Eight to Toll—Water-user to Water Upon Payment of Toll.—Though the owners of the ditch be entitled to toll for the water, the owners of the land are entitled to the water on the payment of the toll.
    APPEAL from a judgment of the County Court in and for the County of Coehise.
    Affirmed.
    The facts are stated in the opinion.
    William Herring, for Appellant.
    The action should be dismissed because it appears that the plaintiffs are not the real parties in interest, who alone under our statutes are allowed to bring an action.
    Goodrich & Smith, for Respondents.
    The court below found that the action was brought in the name of the real party in interest. There being no evidence in the record that militates against such finding, this court will assume that the finding of the court below is in accordance with the evidence given at the trial.
   BARNES, J.

The defendant seeks to reverse this case for the reason that the court erred in not dismissing the complaint, claiming that the evidence shows that the plaintiffs have no interest in the subject-matter. The statement does not contain all the evidence. It appears that plaintiffs sought to enjoin defendant from taking water from the San Pedro river above them, to the extent of impairing their use below for irrigation purposes; that plaintiffs use, and have for a long time used, water to irrigate some 600 acres of land. The water runs through a ditch, and defendant urges that the evidence shows that this ditch is owned by a corporation which is not a party plaintiff. It is not clear, from the record, that the corporation does own the water-right, or that plaintiffs have ever surrendered the right to use the water to the corporation. However, this may be, we cannot say, as a matter of law, that the owners of land irrigated by means of a ditch owned by an other person, or a corporation, may not have an action against one who wrongfully diverts water from the ditch. Though the owners of the ditch be entitled to toll for the water, the owners of the land are entitled to the water on payment of the toll. The diversion of the water from the ditch would injure the owner of the ditch, it is true, but it would also injure the owner of the land to be irrigated, to deprive him of the water. The owner of the ditch, for many reasons, might decline to sue. He might he in collusion with the wrong-doer to destroy the value of plaintiffs’ lands, in the hope of buying them. He might he actuated by private malice. He might, from motives of economy, refuse to embark in a lawsuit of this character. The rights of plaintiff would he of little value if they were subject to the interest, whim, or caprice of the owner of the ditch. "We cannot, therefore, say, from the record, that the court erred in refusing to dismiss the complaint.

The judgment of the court below is affirmed.

Shields, J., and Porter, J., concur.  