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quired to use all reasonably possible means in their construction and management to prevent accidental injuries thereby. I would venture to suggest that the rule as laid down by the trial court in the case of Hoffman v. Tuolumne, etc., Co., above quoted, would be more reasonable and just to all the parties interested than the one finally adopted by the court. These dams, reservoirs, and other structures, in their essentially dangerous nature, have some analogy, at least, to railways, and the same test of liability might, under their respective circumstances, be appropriately applied to each.?

It was also held by the supreme court of Nevada that a dam erected on a stream, in a manner in no wise injurious or prejudicial at the time of its erection to a mill above, but which, by reason of circumstances that could not have been anticipated, happening subsequently, and operating in connection with it, causes the water to flow back upon the mill, is not such an obstruction as to authorize its ahatement, or to justify a recovery of damages against the person building it.”

1[In the recent case of Weide. kind v. Tuolumne Water Co., 65 Cal. 431, 4 Pac. Rep. 415, Sharpstein, J., observed: “It was proper to instruct the jury as to the degree of care and vigilance which the law devolved on the defendant in the construction and maintenance of its dain, and that, if it neglected or failed to exercise that degree of care and vigilance, it would be liable for such damages as any one might suffer from the dam's breaking away. But when the court went beyond that, and instructed the jury that the dam was 'insufficiently and negligently constructed' unless it had gates sufficient

for a certain purpose, it charged
with respect to a matter of fact,
The court might as well bave
charged them that, if the dam was
not of certain dimensions or con-
structed of a particular kind of ma.
terial, it was insufficiently and neg.
ligently constructed. The defend.
ant had a right to have the opinion
of the jury on those questions.
And we think the court erred in
charging that “it was the duty of
the defendant to constantly exam.
ine said dam during the season of
freshets.' That might depend on
circumstances, and should have
been left to the jury.”]
2 Proctor y. Jennings, 6 Nev, 83.

§ 80. Injuries from intentional trespasses.

Secondly, where the injuries are intentional trespasses. In these instances the proprietors of the water-works are, of course, liable without regard to any question of negligence or lack of skill. The law does not permit one person, under color of a right to appropriate, divert, or use the water of a public stream, to trespass upon the lands or invade the existing rights of another party. Thus it is expressly held that the statutes of congress of 1866 and 1870 merely confirm such rights of water on the public lands as were accorded to the owners of mining and other claims by the state customs, laws, and decisions prior to their enactment. These statutes do not grant any rights not recognized by such local customs and laws. They do not authorize A., while engaged in constructing a ditch for water, to excavate it across the mining claim of B., which was located previously to the location of the ditch. In another case a ditch conducted water from a stream over the adjacent country, crossing other small natural watercourses, the beds of which were dammed up by the embankment of the ditch, and by the fall of rain the waters of the streams became so swollen as to render it necessary to cut the embankment of the ditch in order to preserve it from injury; and the owners of the ditch cut the embankment at a point where there was no natural water-course, so that the waters were turned onto the cultivated land of the plaintiff, causing damage. Held, that the injury thereby sustained was not an act of God, but resulted from the voluntary act of the ditch-owners, and they were liable to the plaintiff

' for the damage. may not, in order to save his own property, destroy the property of B., however urgent the necessity.”

2 Turner v. Tuolumne, etc., Co., 25 Cal. 398.

1 Titcomb v. Kirk, 51 Cal. 288; and see, also, Henshaw v. Clark, 14 Cal. 461; Boggs v. Merced M. Co., 14 Cal. 282, 379.

§ 81. Damages from mode of construction or op

eration of works.

Thirdly, where the injury is not an intentional trespass, nor merely the result of negligence, but is the natural or necessary consequence of the mode in which the water-works are constructed, or in which they are ordinarily operated. In some of the instances placed in this group, the wrong may approach very nearly to an intentional trespass, while in others it may involve negligence; but, on the whole, these cases constitute a separate and distinct class. The forms of such injuries are various. One form consists in the discharge of the water, after its use, directly upon the lands of another person, or its discharge in such a place and manner that it naturally and necessarily flows down upon the lands of a neighboring proprietor. In the important case of Richardson v. Kier' the defendant Kier owned a ditch passing over and across Richardson's land. In regard to the general duty of the ditch-owner under these circumstances, the court said: “He [the ditch-owner] is bound so to use his ditch as not to injure the plaintiff's land, irrespective of the question as to which has the older right or title. He is bound to keep it in good repair, so that the water will not overflow or break through its banks, and destroy or damage the lands of other parties; and if, through any fault or neglect of his in not properly managing and keeping it in repair, the water does overflow or break through the banks of the ditch, and injure the land of others, either by washing away the soil or by covering the soil with sand, the law holds him responsible.” In regard to the discharge of the water after use upon the land of an adjacent owner, the court further held: “When Kier discharged his water from his ditch above Richardson's land, in such a place that it naturally would and did flow over and upon and

134 Cal. 63, 74

LAW W. R.-10

(145)

injure R.'s land, K. is liable for the injury so done. It is no excuse that he may have sold the water to miners, by whom it was used before it reached R.'s land and did the injury. If the miners thus contributed to the injury, and are joint tortfeasors with K., this is no defense to a suit against him.” The same liability has been imposed upon the owners of water-works under like circumstances, and for similar injuries in other cases."

1 See Richardson v. Kier, 37 Cal. 263; Blaisdell v. Stephens, 14 Nev. 17; Henshaw v. Clark, 14 Cal. 461; Grigsby v. Clear Lake W. Co., 40 Cal. 396. [Waste Water. Where a riparian owner, for the purpose of irrigation, leads water upon his land, he cannot send down the surplus upon lands lying lower than his own; at least in such a manner as to injure the lower estate. The lower lands are under a natural servitude to receive the ordinary drainage, but this burden cannot be increased by the acts of the upper proprietor. Boynton v. Longley, 19 Nev. 69, 6 Pac. Rep. 437. A person owning a ditch, from which water escapes upon the premises of an adjoining land-owner, cannot escape liability on the ground that such land-owner might, at a small expense, have prevented any damage by digging a ditch on his own land that would have carried off the waste water. McCarty v. Boise City (aual Co., (Idaho,) 10 Pac. Rep. 623. Changing Channel of Stream. One who changes the course of a natural stream of water, and discharges it on his neighbor's land, is liable to the latter for damages. Vernum v. Wheeler, 35 Hun. 53. A pe on owning land abutting on a river, through which A creck flows and empties into the

river, may, as against proprietors on the other side of the river, change the channel and mouth of the creek upon his own land, and for his own protection and convenience, if, in so doing, both in the inception and execution of the work, he exercises reasonable care and caution not to injure the rights of others. If, however, the opposite bank of the river is subject to inundation and overflow in case of unusual but not unprecedented floods in the river, such change in the channel and mouth of the creek cannot rightfully be made, if thereby, in the exercise of ordinary prudence and foresight, increased danger of inundation and overflow on the opposite side of the river might be anticipated. Railroad Co. v. Carr, 38 Ohio St. 448. Dams and Bulk-Ileads. A riparian owner may protect his land from a threatened change in the channel of the stream, liable to occur by reason of the washing away of his bank, and in pursuance thereof may build a bulk. head as high as was his original bank before it was washed away; and this will not deprive the opposite owner of any right, nor give him legal ground for complaint. Barnes v. Marshall, 68 Cal. 569, s. c. 10 Pac. Rep. 115.)

82. Discharge of mining debris.

Another form of the injury, for which the courts have given the remedy of compensatory damages or of injunction, consists in such a use and discharge of the water that it naturally and necessarily flows down upon the lands of adjoining proprietors, charged with mud, sand, gravel, and other mining debris; which material, being thus carried and deposited upon such adjacent lands, injures or even destroys them for all beneficial uses. In Wixon v. Bear River, etc., Co. an injunction was granted restraining the defendant from allowing the water, mud, sediment, or sand collecting in its ditch or reservoir, from flowing down into the plaintiff's garden, and ruining his crops. The court said: “The instructions refused by the court at the trial are founded upon the theory that in mineral districts of this state the rights of miners and persons owning ditches constructed for mining purposes are paramount to all other rights and interests of a different character, regardless of the time or mode of their acquisition, thus annihilating the doctrine of priority in all cases where the contest is between a miner or a ditch-owner and one who claims the exercise of any other kind of right, or the ownership of any other kind of interest. To such a doctrine we are unable to subscribe, nor do we think it clothed with a plausibility sufficient to justify us in combating it.” In Levaroni v. Miller an injunction was granted under very similar circumstances, although the fact appeared or was found that the injury was not done by defendants maliciously or unnecessarily, but in the ordinary conduct of their business. In another type of the same injury the mud, sand, gravel, and other debris are discharged by the ordinary mode of use into a stream, and are carried down by the natural flow of the current, and deposited

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1 Logan v. Driscoll, 19 Cal. 623; Cal. 367; Levaroni v. Miller, 34 Cal. Wixon v. Bear River, etc., Co., 24 231.

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