
    COLLIER et al. v. HARBOUR et al.
    (No. 405.)
    (Court of Civil Appeals of Texas. El Paso.
    March 4, 1915.)
    Appeal and Error <©=1068 — Harmless Error — -Instructions—Cure by Verdict.
    Error in refusing an instruction requested by plaintiff is harmless, where the jury found that the defendants had not committed the acts upon which the request was predicated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. <©=51068.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by H. T. Collier and others against J. F. Harbour and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    W. A. Hudson and E. C. Canon, both of Pecos, for appellants. Hefner & Cooke and Ross & Hubbard, all of Pecos, for appellees.
   HARPER, C. J.

Appellants brought this suit against appellees for an injunction restraining appellees from diverting the water of Toyah creek for irrigation, which they allege they were entitled to have flow down to lands owned by them below, that cattle which were kept thereon might have it for drinking, prayed for damages on account of loss of cattle, extra expense in caring for them, etc., and for a perpetual injunction. Defendants answered by general denial and pleaded specially that the waters taken had been appropriated for more than 10 years; that plaintiff’s cattle received an ample supply of water from springs located upon certain sections owned by them; that the loss of thevwater as to certain of plaintiff’s lands complained of was the result of appellant’s own acts in constructing a dam, which prevented it from flowing down; that plaintiffs had suffered no damages. The trial was by jury; cause submitted upon special issues. The answers were adverse to plaintiffs, and judgment was entered for defendants, from which this appeal is taken.

The first and fourth, fifth, sixth, seventh, eighth, and ninth assignments complain that the verdict of the jury is contrary to the evidence, and that the answers of the jury to certain named special issues are unsupported by the evidence. The jury found that the defendants did not divert all- of the waters of the creek, and that plaintiff’s cattle did not die or suffer for want of _water on account of the acts of the defendants, and that certain acts of the plaintiff materially contributed to the shortage of water for his cattle. The effect of the findings of the jury was a verdict against the plaintiffs and in favor of the defendants upon all the matters complained of in the petition, and such verdict is amply supported by the evidence in the record.

The second and third assignments complain of the refusal to give special charges to the effect that the use of water for stock purposes is a natural use and paramount to that of irrigation. It is unnecessary to pass upon this question of law, for the reason that the jury have found that the plaintiffs have not been deprived, by the acts of the defendants, of a- sufficient amount of pure water for their stock.

The cause is therefore affirmed. 
      <¡&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     