sufficient to justify the verdict in the following particulars, to-wit: The evidence does not show any negligence on the part of the defendant in regard to repairing the ditch in block 59, or that defendant had any possession, control, or right to repair such ditch, or that the ditch was out of repair. There is no evidence that defendant knew that said ditch was out of repair, or that it had been out of repair long enough for the defendant to have known it in the exercise of reasonable diligence. There is no evidence that defendant turned the water into said ditch, or knowingly permitted or suffered the same to flow therein, or that the same was inadequate to carry said water, except when obstructed by third parties. There is no evidence showing any negligence on the part of defendant, or negligence which caused injury to the plaintiff. The evidence shows contributory negligence on the part of plaintiff.

Upon the hearing of the former appeal, the liability of the city for damages resulting from a negligent exercise of its duties in distributing water to the citizens was expressly affirmed, and we have no disposition to disturb that determination; but the question as to how far this liability extends, and over what ditches and water-owners it is charged with care and supervision, is presented by this record. The contention of the appellant is fairly stated in its fourth request to charge, while the contention of respondent is seen in the five paragraphs of the charge above quoted; and we apprehend that the determination of this question determines most of the errors alleged. If the city only undertakes to bring the water along the public streets in the vicinity of the property where it is to be used, and in ditches actually constructed by it, and is only chargeable with that duty, then the testimony excluded on the cross-examination of the witness Wilcken, and on the examination of the witness Smith, should have been allowed, and the requests to charge of the defendant should have been given instead of the instructions given by the court. On the other hand, if the city is charged with the care and control of the water until it is segregated and set apart from the common mass to the licensee, and conduits and ditches used by it for that purpose are under its care and control, then the requested

proof would be clearly immaterial, and the instructions given were correct.

The city charter, in enumerating the powers and duties of the corporation, provides, among other things, as follows: "To distribute, control, and so regulate waters flowing into the city throughout such channels as may be most advantageous, and to prevent the unnecessary waste of water." Comp. Laws Utah, 1876, p. 705, sec. 55. The charter does not confer upon the city the absolute title to the water flowing into it, but commits it to its care, in trust for the inhabitants, and charges it with the responsibility of a proper execution of such trust. The ordinance received in evidence is the regulation by the city of this power conferred upon it, and the scheme or plan adopted requires annual application by each property owner for the use of water, and an annual appointment thereof by the city to such applicants, and requires the applicant to pay a certain amount, which is undoubtedly to defray such expenses as are common to all the property owners of the city; and also his proportion of any amount which is necessary to construct any ditch for the benefit of himself and other property owners which is not common to the entire city. The apportionment of such expense is made by the city water-master, and the applicant is not entitled to his allotment until it is paid. Section 6 expressly provides that "the location, construction, and repair of such ditches" shall be under the control of the city. In distributing water throughout the city for irrigating purposes, and thereby executing the trust reposed in the city, the fact must be remembered, which is recognized by this ordinance, that it must be distributed from along the lines of highest elevation, or from the summit of each particular district, so that the lands to be irrigated may be "under the ditch." These lines of elevation do not always follow the outer or street limits of the block, and it may be just as necessary to construct ditches in which to convey water on its way for divisions and distributions through the center of a block and across the lots composing it, as it is to run the ditch along the streets of other blocks. In this case according to the claim of the appellant, if the water assigned

to the various owners on block 59 had been continued along the street on the north side of the block to the corner, and thence south along the east side, and around the block to each occupant, it would have been under city control. But if that should deliver the water upon the lowest part of the premises to be irrigated, then the city could avoid all responsibility by turning the whole mass across the sidewalk on the north side, and then turn it over to the various owners and leave them to take care of it at their peril.

In the spring before this damage was done, when the property owners on block 59 made applications for assignments of water, it was the duty of the city (acting by and through the water-master) to examine the premises, and if there was not a proper ditch or water-way to properly deliver the water to them, and such as the city was willing to accept and use, then it was its duty to ascertain the cost and expense of such a ditch, and apportion it among such owners. And if such apportionment was paid, it should construct the ditch; if not paid, the water should have been withheld. All this it had ample authority and was its duty to do under the ordinance. If, on the other hand, when such application was made, the city found such a ditch as it was willing to accept, whether it was a natural water-course or made by the parties who would ultimately be chargeable with its cost, and the city did accept it by issuing its licenses, receiving the fee provided by section 5 of the ordinance, and turning the water in a common mass assigned to such owners into such ditch, or using it for the purpose of conveying their allotments to them, it would thereby become its ditch; and it would be chargeable with its care and maintenance, and it would be a main or city ditch mentioned in the ordinance.

We are of the opinion that under the charter and ordinance the city is charged with the custody and control of the waters of the city until they are conveyed to that point where they are segregated and set apart to the particular licensee from the common mass, and that when waters are assigned to various property owners, and is in common turned into or run in a ditch, with the knowledge and ap

proval of the city, and is thereby conveyed to the various licensees, such ditch is a public ditch while so used, and the city is chargeable with negligence with respect thereto. We do not mean to say that property owners may not so interfere or assume control over a ditch as to release the city from its duty; but there is no evidence in this record that the respondent did anything in respect to the ditch running through block 59 except to receive his allotment of water therefrom into his private ditch. The allotments are made annually, and what may have been done in years past, when, so far as this record shows, the respondent may not have owned the property, is immaterial unless he is shown to be in some way bound thereby. We are therefore of the opinion that the questions asked the witness Wilcken on cross-examination, were properly excluded, and the testimony given on the former trial was admissible, and that the testimony of the witness Smith was properly excluded. The testimony sought from both these witnesses only tended to show flagrant disregard of its duty on the part of the city, which could not exonerate it. The requests of the appellant were properly refused, and the instructions given by the court instead thereof were in accordance with the views above expressed, and were, we think, proper.

The law, as stated by the court to the jury upon the questions of negligence and contributory negligence, was as favorable to the appellant as could properly have been asked.

The ordinance was properly received in evidence. It explained in what way the city had undertaken and was carrying out the trust committed to it by the charter, what officers represented it, and for whose acts it would be responsible. It was within the power granted by the charter, and was a reasonable regulation, and had all the force of public law, and both the city and the inhabitants were bound by it. 1 Dill. Mun. Corp. (3d Ed. ), sec. 308; Taylor v. Carondelet, 22 Mo., 105; Milne v. Davidson, 5 Mart, (La.) 586; State v. Clarke, 25 N. J., Law, 54.

The refusal to receive in evidence the affidavit of C. H. Wilcken remains to be considered. Wilcken had already

been examined. He had testified that he was water-master, and made the apportionment to the owners of property on block 59, as stated in the opinion of Judge Twiss before referred to; that he knew of the use of the ditch to convey water to the property on the block; that he turned the water on to the block. It is plain from this testimony and the affidavit that when he says there was no public ditch in block 59 nor one owned by the city, he is merely stating his conclusion from the fact that the city did not build it, and was therefore improper testimony. The statement in the affidavit that the city did not control or operate it is of the same class as that offered from the witness Smith, which was rejected. Indeed, it is just what is complained of in this case, that the city turned the water into this ditch, and used it to furnish water to its licensees, and did not operate or control it, and thereby the respondent was injured. The affidavit was properly rejected.

We see no error in the record, and the judgment and order appealed from should be affirmed.

ZANE, C. J., and BOREMAN, J., concurred.

LUCIEN SWITZGABLE, RESPONDENT,

ገ. MARY

WORSELDINE, AND ANOTHER, APPELLANTS.

BOUNDARIES.--ESTOPPEL. LIMITATIONS. The owner of land inclosed it upon what he supposed to be the boundaries thereof. He then conveyed the north half, reserving to himself and his grantees a perpetual alley-way, five feet wide, along the south side of said north half, and also conveyed an alley-way five feet wide along the north side of south half retained. Said grantee of owner conveyed said north half and said alley-way to defendants, and said owner conveyed said south half and said alley-way to plaintiff. The parties entered into possession and such boundaries were acquiesced in by adjoining proprietors for fifteen years, before commencement of suit: held, that plaintiff was not estopped from showing true boundaries as against defendant.

APPEAL from a judgment of the district court of the third district. The opinion states the facts.

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