plaintiffs appeal. The court found that the damn was "well built, and constructed in a good and workmanlike manner, and of sufficient strength and capacity to contain the amount of water within it;" that no negligence on the part of the defendants was shown, and that they used that reasonable care and diligence which prudent men would have used, in the erection and care of the dam. Under these findings, the court properly rendered judgment for the defendants, as the case comes clearly within the rule laid down in Hoffman v. The Tuolumne Water Company, 10 Cal. 413, and Wolf v. The St. Louis Independent Water Company, Id. 541. But the appellant insists that the findings upon these points are not sustained by the evidence. We have carefully examined the record, and see no error in these findings. They are fairly sustained by the evidence.

The judgment is therefore affirmed.

'NATOMA WATER AND MINING Co. v. McCoy ET AL.

(23 California, 491. Supreme Court, 1863.)

Interruption of flow of water. The prior appropriator of water may recover damages for an irregular flow of water in his ditch caused by a dam erected on the creek above the head of his ditch if the injury sustained is not a mere temporary or trivial one.

2 Evidence-Loss of customers. On the trial of an action for interference with the flow of water in a ditch for supplying mines, proof that in consequence of the irregularity of the flow of water the owners of the ditch have lost their customers, is competent evidence as showing that the damage to the plaintiff was not trivial or temporary, but of such a character as to cause actual and serious injury."

66

Appeal from the District Court, Sixth Judicial District, City and County of Sacramento.

This action was commenced on the twenty-first day of June, 1861. The complaint averred that plaintiffs for four years

1 Proctor v. Jennings, 4 M. R. 265; Bear River Co. v. Boles, 4 M. R. 592. 2 Clark v. Willett, 4 M. R. 628.

had owned and possessed a water ditch, starting out of Alder creek, about one mile below Prairie City, by which ditch plaintiffs had appropriated and used the waters of said Alder creek for mining purposes, during all that time, except as disturbed by defendants; and that defendants, about the first day of June, 1861, had erected a dam across Alder creek, about one half mile below Prairie City, by which they had obstructed the flow of water in Alder creek; and that plaintiffs had suffered great loss by means of the irregularity of the flow of water, and would sustain a loss of one hundred dollars per week in future, etc. The answer set up that defendants were miners, and had entered upon the bed of Alder creek for mining purposes, and had erected a dam and placed some twenty sluice-boxes in the bed of the creek, each about twelve feet long, and that by means of the dam they conducted the water through the sluice-boxes, and emptied it again into the creek, about one fourth of a mile above plaintiffs' dam. The answer also denied that plaintiffs had sustained, or would sustain, any injury from defendants' acts. The jury found a verdict for defendants. Plaintiff's moved for a new trial, which was denied by the court, and from the order denying a new trial, plaintiffs appealed.

A. P. CATLIN, for appellants.

FRANK HEREFORD, for respondents.

CROCKER, J., delivered the opinion of the court, NORTON, J., concurring.

This is an action to recover damages, arising from an irregularity of the flow of water to the plaintiffs' dam and ditches on Aider creek, caused by a dam erected by the defendants on the creek above. The right of the prior appropriator of water to recover damages for such an injury was settled by this court, in the case of The Phoenix Water Co. v. Fletcher, 23 Cal. 481.

At the trial, the court excluded the evidence offered by the plaintiffs, to show that the irregularity of the flow of water was a material injury to them, as in consequence of such

irregularity they lost their customers, who refused to purchase water from them. In the case above referred to, it was held that a mere temporary or trivial irregularity in the flow of water, such as does not cause actual injury to the proprietor. below, would not amount to an actionable injury. The ques tion will turn, in such cases, upon the nature and extent of the injury. In such cases, evidence of the kind offered by the plaintiffs was clearly admissible, as showing that the damage to the plaintiff was not trivial or temporary, but of such a character as to cause actual and serious injury to him. More pertinent evidence to prove that fact could hardly be produced. The court, therefore, erred in excluding it. The fact that the defendants are miners, and hold the water back, causing it to flow irregularly to the plaintiffs, who are prior appropriators of the waters of the stream, does not take the case out of the rule laid down in the case of The Phonix Water Co. v. Fletcher.

The judgment is reversed and the cause remanded for a new trial.

THE BEAR RIVER AND AUBURN WATER AND MINING COMPANY V. BOLES ET AL.

(24 California, 359. Supreme Court, 1864.)

No equitable relief to idle ditch. In a suit for damages by a ditch company and to abate as a nuisance two reservoirs constructed across the bed of the stream which supplied the ditch with water, by which the waters were collected and detained so as to prevent a regular flow in the ditch: Hold, that testimony was properly admitted in defense, showing that the ditch had for a long time been out of repair and unfit for use and unused: Held, also, that the ditch company had only a right by prior appropriation to the use of the water in its natural flow; that other parties had a right to use it, so long as its use did not interfere with the rights of the ditch company, and that no action could be maintained to abate the reservoirs as a nuisance until the ditch was in condition to carry water.

Interested witness-Waiver. An objection to the testimony of a witness on the ground of interest should be made as soon as it appears that he is interested, and a failure to do so then, is a waiver of the objection.

1 Dorr v. Hammond, 1 West C. R. 357, 7 Colo.; Sieber v. Frink, 7 Colo.; Nerada Co. v. Kidd, 37 Cal. 283.

Appeal from the District Court of Placer County, Eleventh Judicial District.

TUTTLE & FELLOWS, for appellant.

Jo. HAMILTON, for respondents.

By the Court: SAWYER, J.

1

The complaint alleges that the plaintiff is the owner of a ditch cut for the purpose of conveying the waters of Rock creek to certain mining localities, for sale; that defendants, before the commencement of the suit, constructed two reservoirs in the bed of Rock creek, above the head of plaintiff's said ditch, by means of which the waters of Rock creek are collected and detained from one day to a week at a time, and then let down in large quantities by opening the gates of said reservoirs; that, by these means, the waters of said streams are not allowed to flow regularly or with a uniform current to said ditch; that if said waters flow down said ditch with a uniform and uninterrupted current, said plaintiff has now, and has had for more than six months last past, a market for the same by which it now can and could heretofore have realized about one hundred dollars per week for the same, by sale to quartz and placer miners; and that he would have said market for a great length of time hereafter; that by the interruption of the regular flow of the waters, as before stated, the plaintiff's customers are unable to use the same; that the market and sale of the said waters depend entirely on the uniform and natural flow of said waters; that if the interruption continues, the plaintiff will lose from fifty to one hundred dollars per week; that defendants are insolvent, and will be unable to respond in damages; that said reservoirs are a nuisance; and that the damages already accrued amount to five hundred dollars. Plaintiff prays judgment for the damages alleged, that the nuisance be abated, and the defendants be enjoined from obstructing, in future, the regular and uniform flow of said

water.

The defendants in their answer, after denying most of the material allegations of the complaint and claiming a right to the waters in themselves, allege, among other things, that

for a long term of years said ditch has ceased to convey any water, and has been mined away at its head and at various other places, and since 1856 has been disused, and has neither carried nor been in a condition to carry any water; that said plaintiff, in and since 1856, sold water to various miners from another ditch owned by plaintiff, and that said miners, with the waters so purchased of plaintiff, with the knowledge, approbation and consent of the plaintiff, washed away and destroyed the ditch described in the complaint, to such an extent that it was wholly destroyed and unfit for conveying any water, and that since 1856 to the present time the said ditch, by reason of said washing away and destruction, has been and still is wholly unfit to carry any water. They deny that said waters have flowed in said ditch since 1856, or that said reservoirs have, in any manner, affected the flow of said waters into said ditch. They aver that if plaintiff had a ditch to convey the waters collected in said reservoirs, they would be as useful to plaintiff as they otherwise would be; that for the want of any ditch sufficient or fit to carry the said waters, the same flow down Rock creek, after being used by defendants, past the head of the ditch described in the complaint; that plaintiffs are not in a condition to use said waters until they rebuild the ditch which has been washed away as before stated.

The verdict of the jury and the judgment thereon were for the defendants, and plaintiff appealed.

On the trial, the defendants introduced testimony, under objection and exception on the part of the plaintiff, tending to prove the destruction and condition of the ditch as alleged in the answer, and the court instructed the jury as follows: "In determining the proposition whether defendants' reservoirs are a nuisance, you will look at all the evidence as to plaintiff's ditch and dam being out of order, and unable to carry the water, and take all the testimony that has been given into consideration." To the giving of which plaintiff excepted, and these rulings are relied on as

error.

We think there was no error in admitting the testimony, or giving the instruction based upon it. The question was, whether the reservoirs were a nuisance in the then present