[6] 3. Over the objection of defendants, plaintiff was permitted to show that, on September 4, 1917, the Cold Creek ditch overflowed on the land of one Mose Zelle and that defendants widened the ditch through Zelle's land from six to eighteen inches for a distance of 413 feet. Zelle's land is the next farm below that of plaintiff and between the two tracts there is a fall or drop of about twenty feet. Respondent disclaims any right to damages by reason of the overflow of Zelle's land, but maintains that the testimony was pertinent to show that defendants had turned in so much more water than they had in former years that it could not be carried off Barr's place and into Zelle's without widening the ditch through Zelle's place.

The evidence was properly admitted. There was testimony showing that in former years the ditch through Zelle's land had always carried the water that was turned into it and there had never been an overflow. It is true that, on cross-examination, Zelle testified that, prior to the overflow, thirty or forty head of cattle had been pastured on the place and had trampled the ditch, but the damage done by the cattle could have been remedied without widening the ditch to the extent that it was widened. The inference seems irresistible that the widening of the ditch was for the purpose of accommodating the increased flow of water which Sarter testified he found in the ditch on September 16, 1917, twelve days after the overflowing of Zelle's land.

[7] 4. Defendants offered in evidence a certified copy of an application, filed by plaintiff with the state water commission in 1917, showing that construction work would be commenced about May 15, 1917, and that the notice of appropriation was posted before the commencement of the irrigation season of 1917, for the purpose of diverting forty miner's inches of water from Cold Creek. The document was offered as a declaration against interest. Plaintiff objected to its introduction as not being a declaration against interest and the court sustained the objection.

Appellants cite 16 Cyc. 954, as follows: "Conduct of a party inconsistent with his present contention may tend to show that the latter is an afterthought and proof of such contention is therefore competent as an admission," and contend that under that rule the offered evidence was improperly rejected. To this, respondent replies: "An applica

tion for water cannot be construed as an admission that the plaintiff had no water right in Cold Creek. Any action of the commission would not affect existing rights and plaintiff or any other party could have a right to make an ap plication for the surplus water of Cold Creek or any other creek."

We agree with the position taken by respondent. It is established by the findings of the court that plaintiff was entitled to fourteen inches of the waters of the creek. His application for forty inches, or any other amount, could not affect his title to the fourteen inches. Nor was the application an admission that he had no right to any of the water. It was simply an attempt legally to secure, if he could, more water than he at that time had. The objection to the admission in evidence of the application was properly sustained.

[8] 5. The plaintiff testified that he had been damaged in the sum of three hundred dollars from the overflowing and swamping of his land. Appellants insist that the admission of said testimony was 'error and that the true measure of damages would be the fair rental value of the ground which was overflowed, citing Crow v. San Joaquin etc. Irr. Co., 130 Cal. 309, at pages 314, 315, [62 Pac. 562, 1058]. That case was an action for damages arising from a breach of contract, and the supreme court stated that the measure of damages was the detriment caused by the breach, as provided in sections 3330 and 3333 of the Civil Code. The citation of section 3330 was probably an error, as there is no such section. It was probably intended to be section 3300, which prescribed the measure of damages for breach. of contract. Section 3333 covers the breach of obligation other than contract and provides that it "is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."

In the cases of Dennis v. Crocker-Huffman etc. Co., 6 Cal. App. 58, [91 Pac. 425], and Strecker v. Gaul, 35 Cal. App. 619, [170 Pac. 646], we held that the measure of damages for destruction of growing crops was that laid down by section 3333 of the Civil Code. While the testimony of the plaintiff was not as complete as it should have been as to the value of crops destroyed, he did testify as to po

tato ground and pasture being rendered useless and alfalfa being "killed out" by the water. The court evidently considered his estimate of three hundred dollars damages as too high, for the judgment gave him one hundred dollars for this item.

[9] 6. Appellants contend that they "are entitled to a judgment giving them a measurement of their water under a six-inch head," while the court gave them 121.3 inches of water measure under a four-inch pressure.

Our statute defines a miner's inch of water as follows: "The standard miner's inch of water shall be equivalent or equal to one and one-half cubic feet of water per minute, measured through any aperture or orifice." (Stats. 1901, p. 660.) Of this statute we had occasion to say, in Lillis v. Silver Creek etc. Water Co., 32 Cal. App. 668, 674, [163 Pac. 1040, 1043]: "This makes the miner's inch equivalent to one-fortieth of a second-foot. Prior to the adoption of the above statute, an inch or miner's inch in this state was defined as the quantity of water passing through an orifice one inch square under a four-inch pressure, which would make the inch equivalent to one-fiftieth of a cubic foot per second."

In a work entitled, "The Theory and Practice of Surveying," by J. B. Johnson, the following is said regarding the miner's ineh: "This is an arbitrary standard both as to method and as to volume of water discharged. It rests on the false assumption that the volume discharged is proportional to the area of the orifice under a constant head above the top of the orifice. Its use grew out of the necessities of frontier life in the mining west, and should now be discarded in favor of absolute units. The miner's inch is the quantity of water that will flow through an orifice one inch square, under a head of from four to twelve inches, according to geographical locality. . . . When the miner's inch can only be defined as a certain number of cubic feet per minute, it is evidently no longer of service and should be abandoned."

In Kinney on Irrigation and Water Rights, second edition, volume 2, section 890, it is said that in arriving at the quantity of water prescribed by the act of 1901 as constituting a miner's inch, "by computation the head of water must be under a six-inch pressure."

It will thus be observed that if the award to defendants had been 121.3 "miner's inches" of water, they would receive approximately fifty per cent more water than they would if the number of inches were measured under a fourinch pressure. But water users in the western states have long been accustomed to measuring their water under the old method, and it is a fixed and ascertainable quantity in California. The plaintiff's surveyor in the present case made all his measurements "under a four-inch pressure,' and the court's award of that amount to defendants must control, though it is quite apparent that in such cases as this it would be advisable that any reference to a miner's inch of water should be "one and one-half cubic feet of water per minute," as a miner's inch is defined by the law, without specifying any particular pressure under which it should be measured.

[10] 7. It is finally contended that defendants' demurrer to the complaint should have been sustained for the following reasons: "1. There is no allegation in the complaint that the defendants threatened to make any material enlargement of the ditch on plaintiff's land; 2. There is no allegation showing how or why the overflow from the ditch on plaintiff's land would cause plaintiff irreparable injury."

As to the first point: The complaint contains "a statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc. sec. 426.) The allegation therein that defendants threaten "to make enlargements of said ditch" is followed by statements as to the damage which will result to plaintiff in case the enlargements are made which are sufficient to show that the damage would be serious. Inasmuch as the allegation is that such damage will flow from the "enlargements" previously mentioned, it would seem to be of no consequence that the word "material," as qualifying the "enlargements," should have been omitted.

[11] As to the second point, the appellants cite City Store v. San Jose-Los Gatos etc. Co., 150 Cal. 277, 280, [88 Pac. 977, 978], and other cases, to the effect that "general allegations of irreparable injury are never sufficient-the facts must be stated from which it will appear that irreparable injury will probably follow."

The complaint before us contains sufficient allegations in this respect. It is therein stated that the overflowing of plaintiff's lands will render the same unfit for cultivation and for raising crops because thereby they will be made too wet for cultivation. In connection with the allegation that said land is agricultural land and that plaintiff for ten years has cultivated said land and raised crops of hay, fruit, and vegetables thereon and that the land is valuable for such purposes, nothing further, in our opinion, is required to show that the damage which would probably result to plaintiff from the threatened acts of the defendants would cause him irreparable injury. The demurrer to the complaint was properly overruled.

The judgment is affirmed.

Burnett, J., and Chipman, P. J., concurred.

[Civ. No. 2893. First Appellate District, Division Two.-August 18, 1919.]

A. MICHALEK, Respondent, v. THE NEW ALMADEN COMPANY, INC. (a Corporation), Appellant.

[1] MINING PARTNERSHIP-INTEREST IN PROPERTY PREREQUISITE.—The ownership of an interest in a mine, or the right to the possession thereof, or an option to purchase the same, is a prerequisite for the existence of a mining partnership.

[2] ID.-AGREEMENT TO WORK MINE-CONSTRUCTION OF ORAL CONTRACT. An oral agreement under which certain persons who have been working as miners upon certain property are given the privilege of opening up an abandoned tunnel on the property and "to take out the ore and deliver it to the company for one and a half years after the completion of the tunnel," for which the company owning the mine is to pay a given price per ton delivered at the mouth of the tunnel, the company to furnish the necessary tools, such miners to receive nothing in the way of wages and to furnish their own board, does not constitute a mining partnership between such miners, they not being bound to

1. Nature of, and what constitutes, mining partnership, notes, $3 Am. Dec. 104; 28 Am. St. Rep. 488; 4 Ann. Cas. 267; Ann. Cas. 1914D, 1191.