"3. If the jury believe from the evidence that the Shady Creek Ditch of plaintiff was located, and any portion of the water of the stream diverted therein prior to the location of the Wilder Claims, and that the raising of the damn to its present height was rendered necessary for the purpose of diverting said water into their ditch, by reason of tailings coming down said stream from mining claims of other parties above said dam, then the jury should find for the plaintiff, and assess such damages as may have been proven.

"5. A party can not justify the cutting of a dam upon the ground that he was abating a nuisance, by showing that at some time prior to such cutting the dam caused him an injury, but he must show either that such dam was causing him an injury at the time when such cutting took place, or that, if allowed to remain, it would cause him an injury at some subsequent time."

The other facts are sufficiently stated in the opinion of the

court.

D. BELDEN and A. A. SARGENT, for appellants.

The court, in effect, instructed the jury that the prior appropriator of the waters of a stream could add to, enlarge or extend the means by which his water was originally diverted, to the destruction of all subsequently acquired rights; and that, in fact, all other and subsequently acquired privileges were by sufferance of this primal right.

For a reversal of this ruling we rely upon the maxim sic utere tuo, ut alienum non ladas. By the ruling of the learned judge, not only the maxim itself was abrogated, but a principle asserted subversive equally of individual rights and of the soundest doctrines of both law and equity: Bush v. Brainerd, 1 Cowen, 78; Hay v. The Cohoes Company, 2 Comst. 161; Ferrera v. Knipe, 28 Cal. 344; Hill v. Smith, 27 Cal. 481; Logan v. Driscoll, 19 Cal. 626; Kidd v. Laird, 15 Cal. 161; Farrand v. Marshall, 17 Barb. 385.

In no class of cases has this rule been more frequently applied than where, as in the case at bar, a riparian proprietor, by change in the use of his water right, affects injuriously his neighbor's property: Angell on Water-courses, Secs. 330,

In Belknap v. Trimble, 3 Paige Ch. 605, it is held that the use and mode of using water must not be varied to the prejudice of others. See also, Platt v. Johnson, 15 Johns. 217; Thomas v. Brackney, 17 Barb. 657; Stiles v. Hooper, 7 Cow. 267; Russell v. Scott, 9 Cow. 279; Simmons v. Tilston, 7 Pick. 203; Robinson v. New York and Erie Railroad Company, 27 Barb. 522.

Such are but a few of the many cases in which this principle has been recognized and applied, and its applicability to this State and to the peculiar tenure by which water rights are here held, was asserted in Hill v. Smith, 27 Cal. 482, with marked emphasis. See, also, Ramsay v. Chandler, 3 Cal. 93; Sims v. Smith, 7 Cal. 150; O'Keefe v. Cunningham, 9 Cal. 591; Jones v. Jackson, 9 Cal. 244.

A party may change the point of diversion of water into his ditch, but not to the prejudice of others: Kidd v. Laird, 15 Cal. 180. Such change may be made, but not to the prejudice of subsequent appropriators: Butte T. M. Co. v. Morgan, 19 Cal. 616.

A. C. NILES, for respondent.

We propose to discuss the general principle announced in the instructions given at plaintiff's request, viz.: That a party who first appropriates and diverts the water of a stream for mining purposes, thereby acquires the right to construct such works as are necessary to divert and use such water; and if damage results thereby to mining claims subsequently located, it is damnum absque injuria.

We shall certainly not take issue with appellants' counsel upon the validity of the maxim, sic utere tuo, ut alienum non lalas; but they have evidently mistaken the true meaning of the maxim. There is no rule of law or legal maxim which requires a person to so use his property as not to damage the property of another. The word lædas imports more than damage; it imports injury. (Notes to Ashby v. White, 1 Smith's Lead. Cas. 361.)

Undoubtedly we have no right to raise our dam so as to injure the mining claims of defendants. But injury means damage accompanied by wrong, as resulting from careless

ness, negligence, etc. The words are sometimes used indiscriminately by the courts, but never when the distinction is required to be drawn. That the raise of the dam resulted in damage to defendant's claims, we of course admit for the purposes of the argument. But the only question is, whether this result was an injury, or damage without injury.

We think the counsel for appellants have mistaken the nature of the property owned by the plaintiff, and the nature of the injuries complained of by us. In our complaint we aver the right to the use of certain waters of Shady Creek, and the interruption of that use by the defendants. The ditch and dam were mentioned only as the corporeal means by which our right to the use of the water was acquired and exercised. The only damage charged was the deprivation of the use of the water. The cutting of the dam was alleged as the means by which we were so deprived of the water. Now, what was it that we acquired by our original location and diversion of the waters of Shady Creek? It was tainly not the right to use and maintain the particular dam that was first erected in 1850, or that erected at any subsequent date. A dam might or might not be necessary to enable us to divert the water. The substantial right we acquired was to divert a certain amount of the water of the stream for mining purposes, and to use the means necessary to divert it. If any change occurs in the bed of the stream from natural causes, or otherwise, but not through any act of ours, our right to the use of the water is unimpaired.

cer

Our right being prior to the location of defendant's claims, these claims were located, subject at all times, not to our right to the use of a dam of a particular height, but to our right to divert the water by such means as might be neces

sary.

We admit the binding force of the decision in Hill v. Smith, 27 Cal. 482, cited by appellants: "The reasons which constitute the groundwork of the common law upon this subject remain undisturbed." But "the conditions to which we are called to apply them are changed." We are to apply the reasons of these rules to an altered condition of thingsnot the strict letter of the rules, which may be inapplicable. For instance, in the enforcement of this rule, the courts of

sister States, concurring with the common law, have held that a riparian proprietor has no right to entirely divert the water of a stream, but has a right only to its impetus, or use while passing over his land. This is only a particular application of the rule under the conditions there existing. But here the ordinary use of water in the mining region requires its absolute diversion from the stream. Will it be contended that there is not a change in the application of the rule in this respect? The court in Hill v. Smith, say there is. Yet, while the court rejects the eastern application of the maxim, it, none the less, applies the reason of it to the state of things here existing. In Hill v. Smith this court took notice of the well-known fact that ditch owners require water for a use that necessitates its diversion from the stream, and so declare the old rule forbidding its diversion inapplicable. The court is just as much bound to take notice of the fact, equally as well known, that the bed of all the streams in the mining region of this State is mining ground; that it is liable at all times to be located and worked as such, and that the inevitable result of such work is to send refuse and tailings down the stream, and fill and cover the dams and claims below. And in the application of the maxim sic utere, etc., to this condition of things, it is equally bound to say that a party who, by prior appropriation of a certain amount of water, has acquired a right to its use, shall not be deprived of his right by such unavoidable change in the bed of the stream. And a subsequent locator of claims above or below is also bound to take notice of this state of things. The defendants in this case well knew, when they located their claims, that the unavoidable result of their work and of the work of others upon the stream would be to fill the bed and force plaintiff to raise its dam, or to utterly abandon its property.

By the Court: SAWYER, J.

This is an action to recover damages for the destruction of an addition to a dam, by means of which the waters of Shady Creek were turned into plaintiff's ditch, and to restrain defendants from tearing down any other addition that may be

made. The defense is, that said addition so torn down was a nuisance to defendants' mining claim.

The plaintiff's testimony tended to show the following state of facts, viz.: That plaintiff is the owner of a mining ditch cut for the purpose of conveying water from Shady Creek to French Corral for mining and other purposes; that the right to the use of said waters of Shady Creek was acquired, and said ditch located, as early as 1850; that the water of Shady Creek was turned into said ditch by means of a dam constructed across said creek; that the original height of said dam was six feet, but that, more than five years before the commencement of this suit, plaintiff had raised it from time to time, till it had attained the height of twenty-four feet; that in the month of August, 1863, plaintiff added from four to six feet more to the height of said dam; that said last addition was necessary in order to turn any portion of the waters of said creek into said ditch, and that this necessity was caused by the largely increased deposits of tailings in the bed of Shady Creek, which arose principally from mining operations conducted about two and a half miles above said dam, and partly from mining operations conducted upon the claim of defendants, by reason of which water and tailings were discharged into said creek, and flowed down to, and filled up said dam.

The defendants' testimony tended to prove that in 1853 defendants and their grantors were the owners and in possession of certain mining claims located in the bed and on the banks of Shady Creek, about three fourths of a mile above plaintiff's said dam; that said claims had been possessed and worked according to the mining customs, from the date of their location to the present time; that for the purpose of working said claims, defendants had a flume constructed above said claims, discharging at the lower end of their said ground; that, at the lower end of said flume, there was, up to 1863, a fall of from five to twenty feet; that in 1863 plaintiff raised said dam between five and six feet; that the bed of the creek was very flat, and in consequence of the raising of said dam the tailings were thrown back upon defendants' claims, and defendants were entirely prevented from working the same; that said claims were valuable and could be profitably worked before said dam was thus raised; that the raising of