Page:Federal Reporter, 1st Series, Volume 4.djvu/807

 MASON ». COTTON, 793 �have been liseS by plaintiffs and their grantôrs since 1872. In the summer of 1879 the Fort CoUins Water-power Com- pany, one of the defendants, made another race or canal, parallel in its general course to that used by plaintîiïs, and above the latter, so as to take water from the Caehe-a-la- Poudre river at a point about one-fourth of a mile above the head of plaintiffs' race. In the same year one Joseph P. Watson, having obtained water-power from the Fort CoUins Company, erected a flouring mill on tHe Une of that compa- ny's canal, about one-half mile above plaintiffs' mUl, and 60 yards from plaintiffs' race. Obtaining power from a point on the river above the head of plaintiffs' race, the position of Watson's mill is such that the waters used in operating it may be deljvered into plaintiffs' race, and flow thence down to plaintiffs' mill. When the Watson mill was completed and set in operation in September, 1879, this was done by agreement between Watson and plaintiffs,, and both milla were run with the same water through the autumn of that year, and until business was suspended by plaintiffs in the early part of this year. It ia said, however, that this use of the same water by both parties was attended with much dif-. ficulty in operating plaintiffs' mill, as the water came to them irregularly, and not in suf&cient quantity to run the mill, Accordingly plaintiffs revoked the permission they had given to Watson to deliver his water into their own race, and insisted upon their right to take water from the river through their race, as they enjoyed it before the Fort CoUins canal was taken ont, and before the Watson mill was built. In the early part of this year defendant Carter Cotton purchased the Watson mill, and soon thereafter, in compliance with plaintiffs' dejnand, changed his tail-race so as to carry the water from his mill to the river under plaintiffs' race. It will be remembered, that, by some understanding or agreement between plaintiffs and Watson, the water from this mill was before that time delivered into plaintiffs' race, with a view to run plaintiffs' mill with the same water, and by this change such use was entirely abandoned. In August last it was found that the waters of the river were not sufficient to sup- ����