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in Deer creek, to flow below to the Coyote ditch of Kidd and others, and their Deer Creek ditch, and none left to flow to Laird's Gold Flat ditch.

For the deprivation of water in the two ditches called Coyote and Dear Creek ditches, caused as above appearing, Kidd and others brought this snit to recover $10,000 damages.

The names and situations of the various ditches in regard to which evidence was admitted, are: 1st. The Deer Creek and Coyote ditches, which tap the creek within abont one half mile of each other. 2d. Laird's new ditch-the one complained of by the plaintiffs—which is above the Deer Creek and Coyote ditches. 3d. Laird's Gold Flat ditclı, which intersects with Deer Creek some distance below the Coyote and Dear Creek ditches, and at a point three and a half miles below the head of Laird's new ditch. 4th. The Deer Creek Mining Company's ditch, above the head of Laird's new ditch, and on the south side of Deer creek; all the other ditches, except the Gold Flat ditch, are on the north side. 5th. The Snow Mountain ditch, which taps the stream above all the others.

Starting from the month of Deer creek, and traveling np the stream, a person would arrive at the head of the varions ditches in the order following: Laird's Gold Flat ditch, Deer Creek ditch, Coyote ditch, Laird's new ditch, the Deer Creek Mining Company's ditch, the Snow Mountain ditch. Of these six, four belong to the plaintiffs, viz.: The Deer Creek, the Coyote, the Deer Creek Mining Company's, and the Snow Mountain; and two, the Gold Flat, and Laird's new ditch, to the defendants.

The contest in the case was upon the following points: 1st. As between the Deer Creek and Coyote ditches on the one hand, and Laird's new ditch on the other. 20. Between the enlargements (if any were made) of the Deer Creek and Coyote ditches and Laird's new ditch. 3d. Between Laird's new ditch and the Deer Creek Mining Company's ditch, with its enlargements. 4th. Between Laird's new ditch and the Snow Mountain ditch.

The court below admitted testimony in regard to the Gold Flat ditch, which added the following complications and points to the case, viz.: 5th. As between the Deer Creek and Coyote ditches and their enlargement, and the Gold Flat ditch and its enlargements. 6th. Between the Deer Creek Mining Company's ditch and its enlargements, and the Gold Flat ditch and its enlargements. 7th. Between the Snow Mountain ditch and the Gold Flat ditch. Sth. Between the Snow Mountain ditch and the enlargements of the Gold Flat ditch. 9th. Between the enlargements of the Coyote and Deer Creek Mining Company's ditch, and the enlargement of the Gold Flat ditch.

The verdict was: “We the jury in the above entitled cause find for defendants."

The order overruling the motion for new trial states that “the motion would be granted, if the effect of the verdict of the jury and judgment thereon will be to limit the quantity of water to which plaintiffs are entitled to the priority, to one hundred inches in each of their two ditches, to wit: the Coyote and Deer Creek ditches; for the testimony of defendants' witnesses, to say nothing of plaintiffs', all showed that each of the ditches above named was of sufficient capacity to run much over one hundred inches of water before defend. ants had constructed any ditches. But I infer the jury must have concluded that plaintiffs themselves had diverted the water to which they were entitled for the Deer Creek and Coyote ditches, by means of their other ditches above, and that these facts could be shown, should it ever hereafter be necessary to determine what was really in issne upon the foriner trial.”

There was much evidence as to the size and capacity and the enlargements of all the ditches.

Defendants had judgment. Plaintiffs appeal.

McCONNELL & Niles, for appellants.

MEREDITH & HAWLEY, for respondents.

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

The objection to the authentication of the statement on the motion for a new trial is not well taken. The statement is signed by the judge, and the ininutes of the court show that it was used on the hearing of the motion. No mode of authentication is pointed out by the statute, and any satisfactory evidence tbat the statement has been examined and approved by the judye is sufficient. This evidence must, of course, appear in the record, in some legitimate and proper form.

This is an action to recover damages for the diversion of water from Deer creek in Nevada county. The complaint sets forth that the plaintiffs are the owners of two certain ditches, by means of which they appropriated the water of that stream for mining purposes, and that the defendants wrongfully diverted such water, and deprived the plaintiffs of the use of the same, to their damage, etc. The answer adınits the existence and ownership of these ditches, but. denies that the plaintiffs appropriated the whole of the water of the stream, and denies that the defendants diverted any portion of the water to which the plaintiffs were entitled. The answer states, among other things, that the defendants are also the owners of certain ditches by means of which they appropriated the surplus water of the stream, over and above the quantity appropriated by the plaintiffs; that neither of the plaintiff's' ditches, as originally constructed, possessed the capacity to convey more than one hundred inches of water; and that since the appropriation by the defendants, these ditches have been greatly enlarged, and their capacity materially increased. It states, further, that the plaintiffs are the owners of certain other ditches tapping the stream at different points above the ditches mentioned in the complaint; and that at the time during which it is averred that the defendants wrongfully diverted the water, the plaintiff's were themselves diverting, through such other ditches, the entire quantity to which they were in any manner entitled. The answer contains several other defenses, but a particular refer. ence to them is unnecessary for the purposes of this opinion.

The ditches from which it is claimed that water has been improperly diverted by the detendants are situated on the north side of Deer creek; one of them is called the Deer Creek ditch, and the other the Coyote ditch. The other ditches belonging to the plaintiffs are: 1st. The Deer Creek Mining Co. ditch, on the south side of the stream; 2d. The

Big Snow Mountain ditch, on the north side of the stream; and 3d. The Little Snow Mountain ditch, on the same side. These ditches tap the stream in the order above enumerated. The defendants' ditches are: 1st. The ditch known as Laird's Gold Flat ditch, situated on the south side of the stream, below all the ditches of the plaintiffs; and 2d. Laird's new ditch, on the north side of the stream, between the plaintiffs' Coyote ditch and their Big Snow Mountain ditch. The diversion of water throngh the latter ditch of the defendants constitutes the cause of action stated in the complaint.

The learned judge before whom the case was tried in the court below, in overruling the motion for a new trial, placed his decision upon the ground that the jury were authorized to infer from the evidence that the plaintiffs themselves had diverted the water to which they were entitled from their Deer Creek and Coyote ditches, by means of their other ditches above. The counsel for the appellants, in referring to this decision and the reason for it, say: “We differ materially and radically from the learned judge upon the character of the evidence in regard to damages; but the difference arises from the different points of view from which we look at the question. If the evidence respecting the Gold Flat ditch was, as held by his IIonor, properly adınitted, then, perhaps, some portions of the testimony respecting damages might be consid. ered as conflicting; but if, as we contend, that evidence ought to have been excluded as improper, there is no conflict what

No one, not even the respondents, will pretend to say that we did not establish, by uncontradicted proof, that Laird's new ditch had frequently taken water from the creek when we were in actual need of the same water to fill our Deer Creek and Coyote ditches. Their answer to this proof consists, not of a denial of its truth, but of an attempt to show that we had diverted all the water to which we were entitled, by means of the Deer Creek Mining Co.'s and the Snow Mountain ditches. But both of the last-named ditches are, as we have very conclusively shown, prior in date of construction to Laird's new ditch, and the Deer Creek Mining Co.'s ditch has priority over the Gold Fiat ditch, so that, after all, the respondents' own argument necessarily has the effect to limit the controversy as respects damages to the Snow Mountain and Gold Flat ditches. Of course, then, if our views in regard to the Gold Flat ditch are correct, this hypothesis of the defendants falls to the ground, and the single question remains to be determined, whether the defendants' new ditch did or did not, within the period charged in the complaint, divert water to which the plaintiffs' Deer Creek and Coyote ditches had the preference; and on this point, leaving the Gold Flat ditch out of sight, there is no dispute or controversy.” This quotation from the brief of appellants' counsel presents fully and fairly their view of the case, and avoids, to a great extent, the necessity for a critical examination and elaborate review of the evidence. Their position is simply this: that all the evidence in regard to the Gold Flat ditch was improperly admitted, and that rejecting this evidence, there was no conflict of testimony upon the question of damages. If the evidence was admissible, it is, upon their own showing, sufficient to support the verdict.

ever.

The object of this evidence was to show that the defendants were entitled to a certain quantity of water for their Gold Flat ditch, and that they diverted this quantity through their new ditch instead of the other, which it was claimed they had the legal right to do. The evidence having been admitted, the court instructed the jury, in effect, that a person entitled to divert a given quantity of the water of a stream, may take the saine at any point on the strearn, and may change the point of diversion at pleasure, if the rights of others are not injuriously affected by the change. The following instruction, asked by the plaintiff's, was refused: “If the jury believe from the evidence that the dam of the defendants' Gold Flat ditch is below the dains of the Deer Creek and Coyote ditches, and that the dam of the defendants' new ditch is above the dams of the Deer Creek and Coyote ditches, then, even if the defendants had a prior right to any of the waters of Deer creek for their Gold Flat ditch, they could not substitute their new ditch for their Gold Flat ditch, and use the water to which, as owners of the Gold Flat ditch, they were entitled, in such new ditch.” As the instruction given by the conrt embodies the principle upon which this evidence was admitted, and upon which the instruction asked by the plaintiff's was refused, a determination of the correctness of that instruction disposes of the whole question.

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