times. An agriculturist might appropriate the waters of a stream for irrigation during the dry season, and a miner might appropriate them for his purposes during the remainder of the year. And so several persons may appropriate the waters for use during any different periods. There is no difference in principle between appropriations of water measured by time and those measured by volume": 43 Cal. 376. Upon a careful review of the evidence, we are of opinion that plaintiff was negligent in allowing his tenants to use more water than was necessary to irrigate their crops, and also in allowing the water which defendants turned down to him to run to waste when his own crops needed irrigation. By these acts we think he caused the damages which he claims, resulted from his failure to procure a full crop for want of irrigation. We think, although the testimony is not clear, and many of the findings of the court are unsatisfactory and some of them contradictory, that there is a substantial conflict in the evidence to warrant the conclusion reached by the court that plaintiff contributed to his own damage. In entertaining this view of the case, we must not be understood. as deciding that defendants were wholly without fault. It is the immediate consequences of the injurious acts that must be regarded in assessing damages, and even if defendants. were to some extent in fault (and we think they were) they still had the right to show that the injury of which plaintiff complained was the immediate result of his own negligence, and was not in any way attributable to any act of theirs. Does this finding, however, support the judgment? We think not. It does not necessarily follow from the language used that plaintiff could not recover. The principles that control this case are not, as counsel assume, analogous to the rules applied in actions brought to recover damages on the ground of defendants' negligence, wherein such a finding sustains the judgment for costs, in favor of defendants, upon the theory that both parties were at fault in producing the injury complained of, and that the plaintiff in the action so contributed to his own damages as to render it impossible for the court to apportion. the damages, or to exactly ascertain how much each party contributed. In such actions the rule of contributory negligence is applied to prevent any recovery by either party. In sustaining the finding we must not be understood as holding that because plaintiff was at fault in allowing the water to run to waste, that his negligence in this respect would authorize or justify the defendants in thereafter withholding from him the amount of water to which he was legally entitled. It was the duty of the defendants every fifteen days, or thereabouts, as plaintiff might need the water, to turn down a sufficient quantity, within plaintiff's appropriation, required to irrigate his lands, provided always, that he was not by other means supplied with sufficient water for that purpose; and if they did not do so, or if plaintiff did not, on account of their wrongful acts, get all the water within his appropriation that was necessary for the irrigation of his crops, then, notwithstanding his own previous negligence, he would be entitled to recover at least nominal damages and costs, with a decree for equitable relief. There is another reason why the judgment can not be sustained upon this finding. Defendants, in their pleadings, deny that plaintiff is entitled to any of the waters of Currant creek except the waters flowing from the springs situate upon the Slaght ranch, below the lands owned by defendants, and assert an adverse right to all the waters flowing in said creek above said springs. The evidence shows that when defendants allowed the water above said springs to flow down to plaintiff's premises it was as a favor to plaintiff; that when they afterward refused they based their refusal upon the ground that they had better right to the use of the water. This was, in our judginent, such a diversion as by lapse of time might ripen into a prescriptive right; and although plaintiff's crops of grain and vegetables were not actually damaged by the acts of defendants, it was, nevertheless, an injury to plaintiff's rights and entitled him to recover nominal damages, and to an equitable decree declaring the amount of water to which he is entitled. The rule of law is, that in cases for the diversion of water, where there is a clear violation of a right, and equitable relief is prayed for, it is not necessary to show actual damage; every violation of a right imports damage; and this principle is applied whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation of an adverse right: Parker v. Griswold, 17 Conn. 288; Webb v. The Portland Manufacturing Company, 3 Sumner C. C. 189; Blanchard et al. v. Baker et al., 8 Greenleaf (Me.), 253; Stein v. Burden, 24 Ala. 130. The findings of fact by the court are like a special verdict of a jury, and must be taken in connection with the pleadings to support the judgment: Swift v. Muygridge, 8 Cal. 445; Reynolds v. Harris, 8 Cal. 617. They can not be detached from each other, but must be read together for the purpose of ascertaining their meaning: Millard v. Hathaway, 27 Cal. 140; Kimball v. Lohmas, 31 Cal. 156; and if there is any conflict or discrepancy between general and specific findings. the specific findings must control: Hidden v. Jordan, 28 Cal. 302. Applying these principles to the case under consideration, it becomes at once apparent that the judgment rendered by the court was based upon the specific findings that support the pleadings of defendants, which allege that plaintiff's rights are confined to the water flowing from the springs on the Slaght ranch, and for this reason, upon the merits of the case, we are satisfied that the judgment ought to be reversed. The preliminary objections urged by respondents' counsel are not, in our judgment, well taken. We think the court below was anthorized, upon the application for a new trial under the specifications in the sixth subdivision of section 195 of the Practice Act (Stat. 1869, 226), to decide whether the findings sustained the judgment, and that its action in regard thereto can properly be reviewed by this court on an appeal from the order overruling plaintiff's motion for a new trial.' The judgment and order appealed from are reversed, and cause remanded for a new trial. BEATTY, J., concurring. In this case I concur in the judgment of the court upon the following grounds: The defendants, by their answers, admit and justify the diversion of the waters of Currant creek above the Slaght springs, asserting that they did not naturally flow down to that point in the bed of the stream, and consequently that plaintiff could have made no appropriation of any waters except those of the springs. They claim for themselves a prior appropriation of all the waters of the creek flowing above the springs. Such being the defense set up, if the plaintiff could prove that the waters of Currant creek did naturally flow down to his premises, that he made an appropriation of the whole or any part of the water flowing from above the Slaght springs prior to any appropriation by the defendants, and that they afterward diverted the whole of the water above the springs at times when he needed it, and by virtue of his appropriation was entitled to it, upon such a showing the court should, at least, have decreed the amount of water that he had first appropriated, enjoined the defendants from any future diversion of so much water, and given him a judgment for his costs, and that-whether he proved any specific amount of damages capable of being exactly assessed or not. But the court, among other findings upon which it bases the judgment against the plaintiff for costs, finds that he contributed to his own damage by not making use of all the water that he might have used. That is to say, the court holds that if a man is deprived of three fourths of the water he is entitled to by the wrongful act of another, he can obtain no relief, legal or equitable, if he has allowed any portion of the remaining fourth to run to waste, because he has thereby contributed to his own damage. It is scarcely necessary to say that the doctrine of contributory negligence has no application to such a case, and consequently that the finding in question is wholly immaterial. The judgment must, therefore, be sustained upon the other findings if sustained at all. In all the balance of the findings there is but one material fact asserted, and that is, in effect, that Currant creek does not naturally flow down to plaintiff's premises, but sinks above the Slaght springs; all the rest is merely argument to prove this fact or deduction from it, and the finding is opposed to all the testimony in the case. It is, moreover, inconsistent with the other finding, that plaintiff contributed to his own damage; for to say that plaintiff contributed implies that the defendants also contributed, and they could only contribute by diverting water which would have flowed down to plaintiff except for their diversion. The motion for a new trial should have been allowed. Reversed. INDEX. ABANDONMENT. 1. Questions of abandonment and prior location are peculiarly appro- 316 2. Case distinguished from abandonment.-The case distinguished 552 604 4. Sale of abandoned water right.-A sale of a water right by one 5. Recaption of abandoned water.-The prior appropriator is estopped See CONVEYANCE, 9; FORFEITURE; ESTOPPEL, 4. ACCIDENT-See CRIMES, 25. ADVERSE POSSESSION-See STATUTE OF LIMITATIONS; WATER, 17. AGENT. 1. Removing agent, no change of possession.-The possession of the 2. Agent holds at pleasure of principal.—It is a general doctrine that 3. Removal of agents.-The power to appoint and remove agents and |