of the whole difficulty, and the truest view that can be taken of the ubject. If the water can not be used for irrigation without rendering it liable to be innocently and rightfully used for watering cattle also, then the express grant of the former privilege implies a grant of the latter.

We are quite clear that the plaintiff had a right to the water of the stream in its natural condition, the part that flowed in the ditch no less than the other; that the pollution or material diminution of it was a wrong, and that the court and jury were right in giving damages for every injury which was the direct, immediate, and necessary consequence of that

wrong.

The claim of the plaintiff being only for compensatory damages, and not being founded on the animus, but on the acts of the other party, it can be a matter of no consequence whether or not the defendant knew the extent of the injury he was committing.

Judgment affirmed.

TENNEY V. THE MINERS' DITCH CO.

(7 California, 335. Supreme Court, 1857.)

1 1 Claim injured from ditch located prior thereto. Plaintiff sued for an injury done to his mining claim by the breaking of defendant's canal, which was constructed prior to the location of plaintiff's claim; neither party claimed ownership of the soil, and no negligence in fact was shown: Held, that the rights of the parties were acquired at the dates of their respective locations, and that the rule of "coming to a nuisance" might be applied.

Prior appropriation as affecting accidental injuries. There is no doubt that ditch owners would be responsible for wanton injury or gross negligence, but they are not liable for a mere accidental injury to a claim located subsequent to the construction of the ditch, if no negligence is shown.

Appeal from the District Court of the Fourteenth Judicial District, County of Nevada.

The plaintiff brought his action for damages to his mining 1 Clark v. Willett, 4 M.R. 629.

claim, sustained by reason of the breaking away of a portion of defendants' ditch, owing to the careless manner of its construction, and the consequent overflowing of plaintiff's claim. It appeared by the record that plaintiff had located his claim subsequent to the construction of defendants' ditch. The question of negligence was submitted to the jury as a question of fact, under the instructions of the court below, and they found a verdict for the defendants. The substance of the evidence on the question of negligence is stated in the opinion of the court, as well as the instructions asked by plaintiff and refused by the court below, which refusal is assigned as error. Motion for a new trial was made and overruled, and judg ment entered for defendants.

Plaintiff appealed from the order overruling the motion for a new trial.

HENRY MEREDITH, for appellant.

MCCONNELL, for respondents.

- MURRAY, C. J., delivered the opinion of the court, TERRY, J., concurring.

This was an action of trespass on the case for negligence in constructing a water ditch so that it gave way and flooded the plaintiff's mining claims. Judgment for the defendants, and motion for new trial overruled, from which plaintiff appeals.

The error assigned by the appellant is the refusal of the court to give the following instruction: "That when a ditch is insufficient, and breaks from the weight or quantity of water permitted to flow through the same, the law presumes negligence in its construction or continuance; and if from the evidence the jury believe that the defendants' ditch was insufficient to carry the water and broke from the weight or quantity allowed to flow through the same, and that the plaintiff was injured by such breakage, the jury will find for plaintiff." The correctness of this instruction must depend upon the testimony before the jury.

It appears from the record that the question of negligence

had been submitted to them as a question of fact under the instruction of the court; that evidence had been introduced by the defendants to disprove the charge or exculpate themselves. It was shown, among other things, that the sides of the ditch at the place it gave way had been dug down or injured by some burrowing animal, and also that a tree had accidentally fallen across it, causing the water to dam up, and thereby creating a greater pressure upon the sides of the ditch. It was further shown that the defendants had located and constructed their ditch previous to the location of the plaintiff's mining claims. No negligence, in fact, was shown, other than that which the law would presume from the breakage of the ditch.

The important fact having been admitted that neither of the parties claim as holders of the soil, but simply by virtue of location or appropriation, it becomes necessary to ascertain what rights the plaintiff, who was a subsequent locator, acquired against the defendants.

Some of the earlier English authorities recognize the doctrine that a person may (even as, between owners of the soil) constract or continue what would otherwise be an actionable nuisance, provided that, at the commencement of it, no person was in a condition to be injured by it; or, in other words, that mere priority as between owners of the soil gave a superior right. If a person afterward, by building or otherwise, put himself in a situation to be injured by such structure, it was termed "coming to a nuisance."

This doctrine has long since been exploded on the most obvious principles of sound reason. The right of the owner of the soil to the free use and enjoyment of the same is held to exist anterior to any erection that may be made by an adjoining proprietor, and in such cases the maxim "sic utere tuo ut alienum non lædus" applies. It will be observed that the reason of the rule is founded on the ownership of the soil, and that as between proprietors the same rights or privileges are supposed to exist (except in some few instances); but in a case like the present, where neither party claims an ownership in the soil, and all the rights they possess relate back, or are acquired at the date of their respective locations, the reason of the rule ceases, and the maxim, "qui prior est in tempore,

VOL. XI-3

potior est in jure," as applied by this court to cases involving disputes growing out of mining claims, would seem more applicable.

In fact, any other rule would allow a malevolent person to make a trespass whenever he pleased, by settling along the line of a water ditch or canal, where he supposed from its location, or construction, it was most likely to give way. There is no doubt that the owners of a ditch would be liable for wanton injury or gross negligence, but not for a mere accidental injury where no negligence was shown. In such cases, the maxim, "sic utere," etc., must be construed with reference to the rights of all the parties concerned, and no man can be deprived of the due enjoyment of his property and held answerable in damages for the reasonable exercise of a right: 15 Johns. 43; 17 Johns. 99; 6 Johns. 90; and 3 Mann. & G. 315. In the latter case it was held that a railroad company were not liable for damages cause by fire from sparks from their engine, unless negligence was proven by the plaintiff.

Having thus established what we believe to be the law of the case, it follows that the court properly refused the instruction asked.

Judgment affirmed.

TUOLUMNE WATER Co. v. CHAPMAN ET AL.

(8 California, 392. Supreme Court, 1857.)

1Injunction against diversion of water—Pleading. In the complaint it was alleged that plaintiff had for several years conveyed water down a certain gulch for mining purposes, and had acquired a prior right to the enjoyment and use of the water; that defendants had diverted the water and deprived plaintiff of its use, and that defendants wrongfully claim some pretended and fictitious right to the use of the water. Held, that the allegation of defendants' pretended right did not prejudice the right of the plaintiff to an injunction.

2 Remedy in equity for diversion of water. Diversion of a watercourse is a private nuisance; and while no equitable remedy can be had for a mere past diversion, yet a continued diversion is such an irreparable injury as equity will redress.

'Higgins v. Barker, 7 M. R. 525. 2 Barkley v. Tieleke, 4 M. R. 666.

Title admitted by demurrer-Injunction. When the defendants by demurring to the complaint have admitted the right of the plaintiff to the use of the water in controversy, the plaintiff may have an injunetion against its diversion without first establishing his title by an action at law.

Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.

It is alleged in the complaint that the plaintiff is an incorporated ditch company, and for several years past has conveyed water by means of a ditch from the Stanislaus river, into French gulch, and down said gulch, for sale to others, to be used for mining purposes, and by that means had acquired a prior right to the enjoyment and use of the water; and that being so in the peaceable possession and use of the water flowing in said ditch and gulch, the defendants diverted the water from said gulch, and deprived the plaintiff of its use and enjoyment, and still continued to do so, and refused to desist therefrom, and wrongfully claim some pretended and fictitious right to the use of the water, to the great and manifest injury of the plaintiff. The prayer of the complaint is for a decree forbidding defendants from using or diverting the water for a temporary injunction, and upon the final hearing that the injunction be made perpetual. To this complaint the defendants demurred, which being sustained by the court below, the plaintiff appealed.

H. P. BARBER, for appellants.

WOLCOTT & GREENWOOD, for respondents.

BURNETT, J., after stating the facts, delivered the opinion of the court, TERRY, C. J., concurring.

The demurrer admits the facts as alleged in the complaint: 3 Cal. 323.

The alleged allegation in the complaint, that the defendants wrongfully claim some pretended and fictitious right to the use of the water, does not prejudice the right of the plaintiff to the injunction: Merced M. Co. v. Fremont, 7 Cal. 317.

1 Gibson v. Gibson, 46 Wis. 462.