proved by Cunningham, one of defendant's witnesses, that "the base line was run for the purpose of determining where the ditch would strike the creek. This point was ascertained by starting at the upper end of the base line, and leveling up the creek far enough to allow the ditch a sufficient declivity, which we did in October, 1852, and we placed our notice of claim of water at this point on the creek above the end of the base line." "It was not until the spring of 1853, that we thought of adopting the upper line, on which we dug the ditch."

This statement of the witness is very explicit, and shows that the point where the notice was placed was intended as the upper terminus of the ditch. This being true, the argument of the learned counsel would hardly be applicable to the facts proved, unless taken as we understand it. We, however, cheerfully make the correction.

It is, undoubtedly, true, that a base line is generally first run from the point where the water is to be used, to the stream from which it is proposed to be taken. This line is run upon a level, and the object is to ascertain the fact, whether the water in the stream can be made to flow to the point where it is intended to be used. The line upon which the ditch is actually intended to be dug, should afterward be run within a reasonable time, which must depend upon the circumstances of each particular case.

The instruction offered by the defendants, we now think, was substantially correct, and should have been given.

There was a point made by the defendant which we did not notice in our former opinion. It is insisted that there is a misjoinder of parties plaintiffs, as they were tenants in common, and should have brought separate suits for the restitution of the water. In the case of DeJohnson v. Sepulbeda, 5 Cal. 149, it was held that "for injuries to their common property, as trespass quare clausum fregit, or nuisance, etc., tenants in common should all be joined, but they must sue severally in real actions, generally, as they have separate titles. See also Throckmorton v. Burr, 5 Cal. 400.

The injury complained of in this case is in the nature of a nuisance. It is very similar to the obstruction of ancient lights. To turn aside a useful element from the premises, is

ment.

as much a nuisance as to turn upon them a destructive cleIn both cases, the injury may be equally material. A ditch, to carry off water rightfully flowing to a mining claim, is as much a nuisance as a dam to flood the premises.

For these reasons the plaintiffs properly brought their suit jointly. It would have been error for them to have sued separately. The judgment of the court below is therefore reversed, a new trial ordered, and the cause remanded for further proceedings.

Reversed.

1

THE BEAR RIVER AND AUBURN WATER AND MINING Co. V. THE NEW YORK MINING CO.

(8 California, 327. Supreme Court, 1857.)

1 Diminution of water supply. The first appropriator of water by means of a ditch is entitled to have the water flow without material interruption in its natural channel, so undiminished in quantity as to leave sufficient to fill his ditch as it existed at the time the later locations were made above.

1 Deterioration in quality of water. The deterioration in the quality of the water in the ditch, by means of its use for mining purposes above, should be considered as an injury without consequent damage.

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

The parties to this action are incorporated companies for mining and other purposes. Each company is the owner of a dam and ditch, by means of which the waters of Bear river are diverted from the natural channel of the stream, and sold and used for mining purposes, and by defendants for the additional purpose of propelling a saw-mill. The plaintiffs were the prior appropriators of the waters of the stream, at the point where their dam, at the head of their ditch, is located. The defendants' dam and ditch were constructed subsequently

1 Atchison v. Peterson, 1 M. R. 583; Phoenix Co. v. Fletcher, 23 Cal. 482; Post WATER; Hill v. King, 4 M. R. 533; Qualified Pilot Rock Co. v. Chapman, 11 Cal. 162.

to those of plaintiffs. The ditch of plaintiffs is some fortyeight miles in length, and that of defendants about twenty miles. The waters of the stream, diverted by the dam and ditch of defendants, after being used for mining and milling purposes, are returned again into Bear river, about seven miles above the head of plaintiffs' ditch, except such portion as is consumed by absorption and evaporation. The jury found, specifically, that plaintiffs, by the act of defendants, had lost twenty inches of water per day, for ninety days, during the year 1855, and that the value was one dollar per inch per day. That defendants did detain the water, and cause the same to flow irregularly, and that plaintiffs were damaged by this cause seven hundred and fifty dollars; that defendants did adulterate the water, and plaintiffs sustained damage from this cause to the amount of three thousand dollars; that defendants did not materially waste and destroy the water, but used it in a reasonable manner, and with the least injury to the plaintiffs consequent upon its use, and it could not have been used in any other reasonable manner-and that defendants are entitled to the surplus water of Bear river, to the capacity of their ditch. Upon the facts as partly admitted by the parties, and partly found by the special verdict of the jury, the plaintiffs moved the court for judgment. This motion was overruled by the court, and judgment given for the defendants, from which judgment the plaintiffs appealed. The suit was commenced in November, 1855, and judgment rendered in September, 1856.

CROCKER & ROBINSON, for appellant.

E. D. BAKER and Jo. G. BALDWIN, for respondent.

BURNETT, J., after stating the facts, delivered the opinion of the court, TERRY, J., concurring.

It may be said, with truth, that the judiciary of this State has had thrown upon it responsibilities not incurred by the courts of any other State in the Union. In addition to those perplexing cases that must arise, in the nature of things, and especially in putting into practical operation a new constitution and a new code of statutes, we have had a large class of

cases unknown in the jurisprudence of our sister States. The mining interest of the State has grown up under the force of new and extraordinary circumstances and in the absence of any specific and certain legislation to guide us. Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason, have placed themselves in such conflicting positions that it is impossible to render any decision that will not produce great injury, not only to the parties immediately connected with the suit, but to large bodies of men, who, though no formal parties to the record, must be deeply affected by the decision. No class of cases can arise more difficult of a just solution, or more distressing in practical result. And the present is one of the most difficult of that most perplexing class of cases.

The business of gold-mining was not only new to our people, and the cases arising from it, new to our courts, and without judicial or legislative precedent, either in our own country or in those from which we have borrowed our jurisprudence, but there are intrinsic difficulties in the subject itself that it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, whether we can say after it is done that we have given a just decision, or not.

The use of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases, the element is entirely consumed. Next to these may properly be placed the use of water for irrigation in dry and arid countries. In such cases, the element is almost entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evaporated. Entire absorption is the contemplated result of irrigation. When properly used, as a motive power for propelling machinery, the element is not injured, because the slight evaporation occasioned by the use

is unavoidable, and is not esteemed by the law a substantial injury. Any number of riparian proprietors can use the water as a motive power, in succession, without substantial injury to any other, for the element is just as good for the purposes of the last, as for those of the first proprietor.

Considering the different uses to which water is applied in countries governed by the common law, it is not so difficult to understand the principles that regulate the relative rights of the different riparian proprietors. As to the preferred uses, each proprietor had the right to consume what was necessary, and after doing this, he was bound to let the remaining portion flow, without material interruption or deterioration, in the natural channel of the stream, to others below him. If the volume of water was not sufficient for all, then those highest up the stream were supplied in preference to those below. So far as the preferred uses were concerned no one was allowed to deteriorate the quality of the water. And for the purposes of a motive power, there was no use of the element that could impair its quality.

But in our mineral region we have a novel use of water, that can not be classed with the preferred uses; but still a use that deteriorates the quality of the element itself, when wanted a second time for the same purposes. In cases heretofore known, either the element was entirely consumed, or else its use did not impair its quality, when wanted again for the same purpose. And this fact constitutes the great difficulty in this, and other like cases. If the use of water for mining purposes did not deteriorate the quality of the element itself, then the only injury that could be complained of would be the diminution in the quantity, and the interruption in the flow. It is this novel use of water, and its effects upon the fluid itself, that constitute the main difficulty in this

case.

In repeated decisions of this court, it has been uniformly held that the miners were in the possession of the mineral lands under a license from both the State and Federal governments. This being conceded, the superior proprietor must have had some leading object in view when granting this license; and that object must have been the working of these mineral lands to the best advantage. The intention was to