
    [No. 5478.]
    [No. 3148 C. A.]
    Welty v. Gibson et al.
    Appellate Practice — Findings Sustained by Evidence — Not Disturbed on Appeal.
    A finding of tlie court sustained by sufficient competent evidence, cannot be disturbed on appeal. — P. 19.
    
      Appeal from the District Court of Saguache County. Hon. Charles C. Holbrook, Judge.
    
    Action by John Welty against Homer Gibson and Harriet Gibson. From a judgment for defendants, plaintiff appeals.
    
      Affirmed.
    
    Mr. J. P. Veerkamp, for appellant. ‘
    Mr. J. I. Palmer, for appellees.
   .Mr. Justice Maxwell

delivered the opinion of the court:

Appellant, as plaintiff below, sued appellees to recover damages alleged to have been sustained by Mm by reason of the destruction by appellees of an irrigation ditcb, in which he claimed an interest.

The evidence shows that the ditch was originally constructed by one who is not a party to this suit, through government lands; that subsequent to the time when appellee, Harriet Gibson, acquired title to a quarter section of the land through which the ditch was constructed, appellant enlarged the ditch through Harriet’s land for the purpose of irrigating the land owned by him, without acquiring any right, title or interest in the original construction. At the time of the enlargement of the ditch by appellant the location of the section line in that vicinity was in doubt, and at that time it was generally supposed that the ditch was not on appellee’s land. By a survey made subsequent to the enlargement of the ditch the location of the section line was determined, when it was found that the ditch was on appellee Harriet’s land, who then arranged with the original owner of the ditch to move it off her land, and after she had plowed in the ditch, which alleged trespass is the foundation' of this suit, she proposed to appellant to build a ditch upon appellant’s land on the east side of the line separating her land from appellant’s land. This proposition was declined by appellant and this suit was instituted by him.

Appellant based his right to recover upon an alleged parol license for a right of way granted by appellee Harriet.

Issue was joined upon this allegation. The court found that appellant made an enlargement of the ditch through the land of appellee without any license, or any right of way, or any right whatever, and dismissed the action.

This finding of the court is sustained by sufficient competent evidence, and, under the well settled rule of this court, the judgment cannot be disturbed.

Tynon v. Despain, 22 Colo. 240, and cases there cited, are relied upon by appellant.

Appellant’s evidence failed to bring his case within the rule announced in those cases.

Let the judgment be affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Helm concurring.  