Keeney et al. v. Carillo et al.

enterprise and left the canon. Complainants show that it would have required only an expenditure of fifty or a hundred dollars to have conducted the water out of the cañon. None of the water in the cañon above springs at A A was ever appropriated by complainants to any useful purpose, and but slight evidence of an appropriation of water of springs at A A, and if it was appropriated, it seems to have been abandoned abont a year afterwards, in 1877. Respondents and associates went to cañon, took up lands out from mouth of cañon, and went to work to appropriate water. They opened ditch in March, built dam and made a ditch at D, and thence conducted water by means of ditch and flumes out of cañon and into their lands at F. The dotted line represents the ditch. Respondents made no claim to nor interfered with springs and ditches at mouth of cañon, claimed by complainants. These ditches and springs are below respondents' ditches, and water from them cannot flow into respondents' ditch. Respondents, from eight to eighteen in number, worked constantly from one to two months at construction of their ditch, about forty days. They appropriated the water irrigating their lands below. When respondents were about getting their ditch in cañon completed, complainants appeared and claimed water in the cañon as their property. Afterwards, when respondents had completed work and appropriated water of cañon, complainants came back to the mouth of the cañon and claimed the water. This suit was not instituted until December, 1878, but in the summer previous, by an agreement between parties, complainants had use of respondents' ditch to get water to lands for a time, which was not to prejudice either party's rights to premises. During the time they (complainants) were thus getting water from respondents' ditch, complainants built a cabin or two on their lands, and did one planting. The complainants, up to time of commencement

Keeney et al. v. Carillo et al.

of this suit, did not attempt to build a ditch in cañon from D to mouth of cañon.

W. L. Rynerson and T. B. Catron, for appellants:

The judge who heard the cause found that the complainants only are entitled to the water of the springs at mouth of cañon, and that the respondents, by constructing their ditch and diverting the water of the cienega, decrease the water of the springs at mouth of cañon. This question was not presented by complainants' bill, and the witness Dow, who gave the only testimony on this point, shows by his own testimony that the assumption that the springs last named are supplied by the water of the cienega at head of cañon is not sustained.

In referring to complainants, it is to be understood that complainant, James Aguallo, has established no right whatever, and that one José Maria Aguallo, not nained in complainants' bill, was an equal partner in all that the other complainants acquired, or attempted to acquire. It is apparent that there is a misjoinder of parties plaintiff, which is fatal to complainants' bill.

As to the effect of constructing respondents' ditch upon springs at mouth of cañon, there being only one witness testifying on that point, and answer of respondents having been made on oath, his oath cannot prevail against averment in answer: See Grisley's Equity Evidence, p. 227.

Evidence only opinion, and therefore will not warrant injunction: See Hilliard on Injunction, par. 23, p. 19, etc.

To warrant injunction, clear and certain rights and full disclosure of facts must appear. Complainants should have set up in their bill facts touching diverting water by cutting off percolating water: See Hilliard on Injunction, par. 18, p. 16, and authorities there cited.

Complainants cannot enjoin use of percolating waters: Angell on Water Courses, pp. 152, 173 and 176.

Keeney et al. v. Carillo et al.

Allegations and proofs must correspond to: U. S. Digest, 390, 6155; 21 Ill., 17.

Allegations denied by answer must be proven by two wit nesses, or one and corroborating circumstances: Id., 6163; 7 Blackford, 162; 10 Foster, 500–509.

S. B. Newcomb, for appellees:

The appellants assume, in the statement of their case, both as to the facts and the law applicable thereto, that they had a clear legal right to appropriate the water in the Alamo cañon, and that their going into said cañon and doing the work they did in no way trespassed upon or interfered with the prior rights of complainants. Upon no other hypothesis could they claim to have any legal or equitable standing in a court of equity. If their going there was a trespass upon, . or an interference in any way with, the prior rights of complainants, then they do not come into this court with clean hands; they cannot invoke the aid of this court to perpetuate that wrong. He who seeks equity must do equity.

Now, we say that the defendants had no business in that cañon in the first place. They were trespassers from the beginning; they knew before they went there that the complainants had been in possession of this cañon, including the cienegas and springs at its head for a long time previous. They knew that complainants had taken up, or were occupying, land below the mouth of said cañon; that they (complainants) had had their stock there; had built a house at the mouth of the cañon, had lived there, were striving to make a home for themselves and their families; they knew that the complainants had done work in and at the head of the cañon. They also knew perfectly well, as every one in the country knew, that the lower springs derived their supply of water from the marshes and springs above; they were well aware that if they succeeded in carrying the water out of the cañon above the lower springs, that those springs would dry up (as they did), and the complainants would be

Keeney et al. v. Carillo et al.

literally "starved out;" would be compelled to leave their lauds and homes; be obliged to take away their stock and abandon all the property they had acquired and the work they had done. This is what defendants intended to do when they went there, and that is what they will succeed in doing should this court sustain their view of this case. They did not want these complainants there; they intended to force them to leave.

We contend that complainants had possession of not only the mouth of the cañon and the grounds below, but of the cañon itself, up to its very head, long before the defendants went there at all. The bill alleges, and the answer admits, that said cañon is a narrow, rugged gorge in the mountains; the evidence shows that it is even impossible to pass all the way up through this cañon to its head. It was absolutely impossible for complainants to fence in this cañon. They could under no circumstances take exclusive possession of it any further than they did, that was by building a house at its mouth, and they also built a small house up at the cienega; they dug ditches through the cienega, and also at different places in the cañon. They, or some of them, lived at the mouth of the cañon, not all the time, it is true, they were absent occasionally, but they kept their cattle there, and farmed lands in the vicinity. This, we contend, was taking actual continual possession of the cañon; they could do no more under the peculiar formation of the country, and it was sufficient actual possession as against mere trespassers, such as these defendants. These defendants knew, when they first went there, that complainants claimed possession of this cañon. Their own witness, Sylvanio Gabaldovia, who was one of the party who worked for and with the defendants, says, "We had heard, before we went there, that plaintiffs were in possession of mouth of cañon; we had heard that the Hills were living in the house at the mouth of the cañon." Again, their own witness admits that Hum