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using the water in a certain ditch, the evidence showed that there was a great scarcity of water, and that it could not have reached the plaintiff's lands, whereupon a verdict for nominal damages was rendered and sustained; and it was further held that where a party sues for damages for such a cause, if it is shown that he could have obtained water from another source, he will not be entitled to receive a greater sum than he would have had to expend to obtain water from such source.

The prior locator of a mining claim on the bank of a stream has a right to the use of the bed of the stream for the purpose of fuming or working his claim, and may recover damages for the obstruction of such right by parties who subsequently erect dams or embankments upon the stream, by reason of which he is hindered from working his claim by flumes or other necessary means or appliances.? ]

$ 76. Deterioration of quality of water.

With respect to deterioration in the quality of the water, caused by subsequent locators or claimants higher up the stream, there was at an early day some doubt; but the rule is now settled that an interference of this kind producing injury will be treated in the same manner as an interference with the quantity. In the early case of Bear River, etc., Co. v. New York M. Co. the plaintiff was the prior appropriator of water for mining purposes. The defendants took the water at a point higher on the stream, used it for their mining purposes, and then sent it down the stream undiminished in quantity, but filled with mud, sand, gravel, and other mining debris. In regard to this the court, after stating the rule concerning diminution in quantity, said: “As to deteriorations in quality by the water being used for mining above the plaintiff, this is damnum absque injuria. Any

1 Maok v. Jackson, 9 Colo. 536, 13 Pac. Rep. 542.

2 Sims v. Smith, 7 Cal. 148. 88 Cal. 327.

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other rule would prohibit any use of the whole water of a stream, so as to preserve a small quantity of it first appropriated.” The conclusion reached in this decision was antagonistic to the claims of the prior appropriator, and, if final, would plainly render his rights very precarious, and liable, in fact, to complete destruction by such a pollution of the water as would make it wholly unfit for his purposes. In the subsequent case of Hill v. Smith' this former decision was entirely abandoned, and a rule was established which fully protects all the rights of the prior appropriator. The court held that if parties engaged in mining operations above the head of a ditch belonging to a prior appropriator, on the same stream, injure the water by means of mud, sand, sediment, or other mining debris, they are liable therefor to the ditch-owner, and their liability is not at all a question of negligence or unskillfulness. If the ditchowner is in fact injured, the miners are liable, even though such injury is not caused by their negligent or unskillful methods of mining. As between ditch-owners and miners using the same stream, the law does not tolerate any injury by one to the prior rights of the other. In regard to the basis of these rights, the court say that the reasons which underlie the common-law rules concerning riparian rights have not lost their force in the mineral regions of this state. The rule thus settled cannot be restricted to the pollution of water by mining operations alone. It must extend to all modes of deteriorating the quality of water by which injury is done to a prior appropriator. This view is taken of it by the supreme court of Utah, which holds that when the water of a stream had been appropriated and diverted by a ditch for purposes of irrigation and for domestic uses, the pollution of the stream above the ditch is a private nuisance,

127 Cal. 476; and see s. c. 32 Cal. 166. *Cramer v. Randall, 2 Utah, 248.



$ 77. Various kinds of injuries.

It seems proper, in this connection, to consider very briefly the liabilities of ditch-owners, miners, appropriators, and other parties using waters as before described, for injuries caused or occasioned by such use to adjoining proprietors and occupants. These injuries may be of various kinds, resulting from negligence, unskillfulness, design, intentional trespass, from the methods in which the use of the water is ordinarily conducted, and the like. I shall examine these different species or types of injury separately.

$ 78. Damages caused by breaking or overflow.

First, where the injury is not intentional, nor resulting from the ordinary and constant mode of using the water, but is caused by the breaking or overflow of ditches, reservoirs, dams, and other structures, lawfully erected for the purpose of appropriating the water to legitimate uses. The doctrine is settled by the English courts that whenever a party lawfully constructs a reservoir, embankment, dam, or other artificial structure on his own land, for the purpose of catching, impounding, or retaining water, he thereby becomes an insurer of the safety of his adjoining or neighboring proprietors and occupants against all possible injury occasioned by his structure. He is absolutely liable to a neighboring proprietor or occupant for all injury done to the latter through a bursting or overflow of his reservoir or other structure, entirely irrespective of any negligence or want of skill in its erection or management, and even though the accident was caused by an unusual storm, flood, or other so-called "act of God.” The English decisions have not been followed in all our American states. The doctrine which they establish has been rejected by the courts of California, and pronounced entirely inapplicable to the mining and water interests of the Pacific communities. It has been settled, by a series of well-considered decisions, that ditch-owners and proprietors of similar works are only bound to use that amount of care, skill, and diliyence in the erection, maintenance, and use of their reservoirs, ditches, canals, flumes, and the like, which an ordinarily prudent man uses in the management of his own affairs of the same kind and under the same circumstances. I will refer to a few of the leading cases in which this test of liability was judicially settled.

In one of the earliest of these cases the action was brought to recover damages caused by the bursting of defendant's dam, whereby the plaintiff's land was overflowed and injured. The right to recover was based upon an allegation that the dam was constructed in a careless and insufficient manner. Held, that such a claim presented a good cause of action; and if the dam was thus constructed, and the bad construction was the proximate cause of the bursting and overflow, the defendant was liable. But the court at the trial had charged the jury as follows: "If the jury believed that the dam was improperly constructed, or that the defendant could have constructed it in a better or more substantial manner, 80 as to prevent its breaking, then the defendant was liable.” This charge was held to be erroneous. sented the de:endant's duty and liability in too broad a man

The question is not what the defendant could possibly have done, but what discreet and prudent men should do, or ordinarily do, in such cases, where their own interests are to be affected.

Wolf v. St. Louis, etc., Co.? was a similar action, to recover damages for the overflowing of plaintiff's land through the neg

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1 Hoffman v. Tuolumne, etc., Co., 10 Cal. 413.

% 10 Cal. 541.

ligent construction and use of defendant's flume. On the trial the court charged that defendant was bound, in the construction and management of its dam and flume, to use all the care which a very prudent owner would use under the like circumstances. This instruction was pronounced error; that the owner of a flume, ditch, reservoir, etc., is bound to use that care and caution, in the construction and management of his water-works, to prevent injury to others, which ordinarily prudent men use in like instances in their own affairs; and that the question of negligence in such cases must largely depend upon all the surrounding circumstances. In a similar action to recover damages from the overflowing of plaintiff's land by the breaking of defendant's dam, the defendant was held liable for negligence in building and using the dam, whereby the water overflowed the lands of the plaintiff. The court added the further most important rule governing this class of cases, that the doctrine of contributory negligence on the part of the plaintiff could not apply to an injury caused by such negligence of the defendant; that a want of reasonable care on the plaintiff's part could not be set up as a defense to such an action.'

§ 79. Proper measure of care required.

While the English doctrine is extreme in one direction, it may well be doubted, I think, whether this rule does not go too far in the other extreme, and impose an insufficient liability upon the owners of water-works. Since these structures are necessarily dangerous to neighboring proprietors, and since the injury caused by their accidental bursting or overflow is necessarily great, it would seem just that their owners should be re

1 Fraler v. Sears, etc., Co., 12 Cal. 556. Aslaying down the same general test of liability, see, also, Todd v. Cochell, 17 Cal. 98; Tenney v. Miners' Ditch Co., 7 Cal. 335;

Campbell v. Bear River, etc., Co., 35 Cal. 679; Richardson v. Kier, 34 Cal. 63, 74, and 37 Cal. 263. And see Parker v. Larsen, 86 Cal. 236, 24 Pac. Rep. 98%.

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