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Upon this subject I understand the following to be the correct rules of law:

1st. That every trespass or injury, however slight, is the subject of action.

2d. That an injury which would nierely entitle the party to nominal damages is not such as would authorize au injunction or abatement.

3d. That where the injury is more than nominal, and interferes with the comfortable enjoyment of property, courts of equity will interpose and prevent its continnance.

Having discussed this subject at some length in the case of Harvey v. Chilton (11 Cal. 114), at this term, I shall forbear extending my remarks at this time, but respectfully reter the court to that case and the authorities there cited, both by the counsel on the other side and myself.

In this case, the jury returned a verdict finding, in the language of the act, that the ditch complained of does injarionsly affect plaintiff's lot, and interferes with his comfortable enjoyment of it. And having so found, it was then in the discretion of the court to abate the nuisance; and I presume this court will not say that such discretion was improperiy used.

The complaint describes the character of the ditch, and shows its effects upon the land, and the answer does not controvert such description, from which it appears that a strip of plaintiff's lot, from one side to the other, and from four feet to ten or twelve wide, is rendered unfit for use so long as the ditch may remain on it, and necessarily it is inconvenient to pass over the ditch, which can only be done by small bridges, to cultivate the northern part of the lot.

Again calling attention to the case of Burdge v. Underwood, cited, I leave the case with a suggestion or two in reference to the motion for new trial.

This motion is made upon the ground of newly discovered evidence, to wit, that Weimer was not the owner of the land upon which the nuisance was created.

The answers to this motion are inore numerous than necessary to state, and I will therefore only give:

1st. The affidavit is made only by one defendant, when there were many, and does not pretend that the newly dis

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covered testimony was unknown to his co-defendants. It is true, he says that he had the chief defense of the case, and I presume that his co-defendants did the small work.

2d. The deed and record which he exhibits shows that the deed from Gordon to Weimer was executed and filed in the county recorder's office nearly one year before the conmenceinent of this action, and the suit of Gordon v. Weimer had been terminated before this was commenced. How, under the circumstances, attorneys conlu have induced their client to swear that he by “due diligence” could not have discovered the evidence before trial, I can not understand.

3d. Weimer sliows by his answer that, in fact, the land was his long before the deed was executed, the latter being withheld until the purchase money should be paid.

4th. Possession is sufficient to maintain the action against a continuance of the nuisance.

5th. The application should show that the evidence is new material, not cumulative; has been discovered since the trial, and could not liave been, by due diligence, discovered before trial, and will not be granted if the facts stated are fully controverted by counter affidavits: Bartlett v. IIouden, 3 Cal. 55; Brooks v. Lyon, Id. 113; Burritt v. Gibsm, Id. 396.

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

The assignments of error are, first, in striking out part of defendants' answer; second, that the verdict of a jury did not warrant the judgment; and third, refusal of the court to grant a new trial on the ground of newly discovered evidence.

The first point is not well taken. It has never been held that a trespasser upon lands in the possession of another can justify his acts by setting up an outstanding' title, in which he has no privity. Nor has it ever been decided that the fact that a party is engaged in the construction of a work requiring a large pecuniary expenditure, will justify a trespass on private property. The allegations were properly stricken ont as irrelevant because it is true, they constituted no defense to the action.

The second point is answered by the decision of this court

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in Burdge v. Underwood, 6 Cal. 45, the findings of which are entirely analogous to the special verdict in this case.'

The third objection is that the court erred in refusing a new trial, on the ground of newly discovered evidence. The evidence set out in the affidavit consisted of a deed which had been recorded in the county recorder's office more than twelve months prior to the trial, and the record of a judgment in the same court in which the cause was tried; and we are not able to perceive why this evidence could not as well have been discovered before the trial, by the exercise of the slightest degree of diligence.

Judgment affirmed.

THE BUTTE CANAL AND Ditch Co. v. VAUGHN.

(11 California, 143.

Supreme Court, 1858.)

2 Reclamation after flowing back into natural stream-Mingling waters.

V. turned certain water which he had appropriated into a natural ravine, whence it flowed into Jackson creek, and mingled with the waters of that stream, but after descending about a mile, was again taken up at a point above The Butte Co.'s claim and diverted by V. to his mining claim. The Butte Co. brought suit for diversion: Held, that the prior right to the use of the natural water of a stream does not entitle the owner of such a right to the exclusive use of the channel. So long as his right is not interfered with, there is no reason why the bed of the stream may not be used by others as a channel for conducting water. Held further, that the water introduced by V. did not necessarily become subject to the use of the Butte Co., because its identity was lost by being mingled with the water naturally flowing in the creek. The rights of the parties after such mingling are not unlike the rights of the owners of goods of equal value after their mixture—both are entitled to

take their given quantity. Burden of proof. The burden of proof rests upon the party causing the

mixture. He must show clearly to what portion he is entitled. The enforcement of his right must leave the opposite party in the use of the

full quantity to which he was originally entitled. vase distinguished from abandonment. The case distinguished from

one in which the water once diverted is allowed to find its way back to the stream by the natural level of the country so as to indicate an abandonment of it.

14 M. R. 517.
2 Mingling oil in pipe line: Hutchison v. Com, 4 M. R. 208.

1

Rights of prior appropriator. The first appropriator of the water of a

stream į assing through the public lands in the State has the right to insist that the water shall be subject to his use and enjoyment to the extent of his original appropriation, and that its quality shall not be impaired so as to defeat the purposes of its appropriation. To this extent his rights go, and no further. In subordination to those rights, subsequent appropriators may make such use of the channel of the stream as they think proper, and they may mingle its waters with other waters, and divert an equal quantity, as often as they choose.

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

This was an action for the diversion of the waters of the south fork of Jackson creek in the county of Amador. Plaintiffs claimed under the first appropriator of the waters of said stream. Defendant in his answer set up a right to a portion of the water, by virtue of a contract with the owners of the Amador county canal, which drained the north fork of the Mokelumne river. From this canal, the water claimed by defendant was cmptied into a natural ravine, and from thence flowed into the south fork of Jackson creek, above the dam of plaintiffs, and after descending the stream for a mile, was again taken up at a point above the plaintiffs' dam and diverted throngh defendant's ditch to his mining ground. Plaintiffs demurred to this portion of the defendant's answer as neue matter. The demurrer was sustained by the court below, and the defendant appealed. The material facts sufficiently appear in the opinion of the court.

W. W. COPE, for appellant.

Robinson, BEATTY & HEACOCK, for respondent.

FIELD, J., delivered the opinion of the court, TERRY, C. J., and Baldwin, J., concurring.

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The plaintiffs claim under the first appropriators, the right to the waters of the south fork of Jackson creek, in the county of Amador, and previous to and at the time of the diversion by the defendants, which is the occasion of this suit, were the owners of a line of ditch and of flumes and aque

* Columbia Co. v. Holter, 2 M. R. 14.

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ducts into which, by means of a dam constructed across the stream, they diverted the waters from the natural channel of the fork, and conducted the same to adjacent mining ground to be used for mining purposes.

The defendants are the owners and in possession of valuable mining ground situated on the north side of the fork, and are endeavoring to obtain the requisite supply of water for its successful working from the north fork of the Mokelnmne river and its tributaries, through the Amador county canal, under a contract with the owners of the canal. For that pur. pose the water is conducted from the canal by artificial channels to a natural gulch or ravine, from which it is emptied into the south fork of Jackson creek, above the dam of the plaintiffs. About a mile below the point where the water is thus emptied, the defendants have constructed a ditch leading to their mining ground, into which, by means of a dam at its head thrown across the fork, they divert a portion of the waters flowing into the channel, and it is this diversion which is the subject of complaint in this suit. The quantity of water diverted does not equal the quantity emptied into the fork from the Amador county canal through the ravine or gulch designated. Upon these facts the single question is presented whether the defendants, after the mingling of the water conducted by them from the canal with the waters naturally flowing in the fork, possess the right to take out an equal or less quantity from the stream--or is the right of the defendants to the use of the water while in the ravine, or to the use of an equal quantity, lost by its subsequent mingling with the natural waters of the fork?

This case is similar in its material features to that of Hottman v. Stone, 7 Cal. 46. In that case the plaintiffs were the prior appropriators, and as such entitled to the waters of a stream called Dutch gulch, the channel of which was dry at certain seasons of the year. This channel the defendants used as a connecting link between two canals constructed by them, emptying their waters by one canal into the channel, and subsequently diverting them by means of a dam into the other. The plaintiff's in that case, who were the owners of a ditch which received its supply of water from the creek, obtained a judgment perpetually enjoining the defendants from divert

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