STILES ET AL. V. LAIRD.

(5 California, 120. Supreme Court, 1855.)

1Abatement-Obstructing water in mining gulch. The obstruction of water in a mining gulch, to the common injury of many miners working their possessory claims below, is a nuisance which such miners might abate in a peaceable manner if they were first in the appropriation of the water for mining uses.

Statute and common law not in conflict. The statute of California defining what are nuisances and prescribing a remedy by action does not take away any common law remedy in the abatement of nuisances which the statute does not embrace.

Appeal from the District Court of the Tenth Judicial District, Nevada County.

ALEXANDER ANDERSON and J. W. G. SMITH, for appellants. BUCKNER & HILL, for respondent.

BRYAN, J., delivered the opinion of the court. HEYDENFELDT, J., concurred.

This cause comes up upon the following state of facts: The respondent purchased from miners upon "Lawson's Ravine," in the county of Nevada, certain mining claims situated upon the ravine, which had been held and worked for several years. A large surplus of water from the debouching of foreign ditches passed through the ravine, which was used by the miners upon the ravine in the washing of the gold-bearing earth and the removal of tailings from their claims. Subsequently to the location of mining claims upon the ravine, a portion of the plaintiffs below erected a dam for the purpose of turning the water into a mill-race, and conducting the water to a mill occupied by them. The respondent and others, mining upon the ravine, complained of the erection and retention of the dam as injurious to the free use of their mining prop erty above the dam, by flooding their ground with water and preventing an outlet to the tailings from their claims. Notice

1 Wetmore v. Tracy, 14 Wend. 250; Roberts v. Rose 14 M. R.

was given, as appears by the evidence sent up, to the plaintiff's below, to remove or open their dam on account of the injury it was working to those above.

The plaintiffs below not removing their dam, respondent Laird, with others, proceeded, as they attempted to establish by proof, in a peaceable manner to remove the dam themselves, and abate the same as a nuisance.

This action was brought against them for damages in the court below upon the account of the removal above alluded to, and the jury found a general verdict for the defendants. The plaintiffs appeal and assign as error the charge of the court to the jury and errors of law occurring at the trial.

Appellants' counsel rely for error, first, upon the charge of the court below to the effect that if the jury believed from the evidence that plaintiffs had so extracted the waters in "Lawson's Ravine" by means of their dam, as to create a nuisance to those working in the neighborhood who were first in their location of claims upon the ravine, then the jury should find for the defendants.

I deem the instructions given by the court to have been proper. The statute of this State defining what are nuisances and prescribing a remedy by action does not take away any common law remedy in the abatement of nuisances which the statute does not embrace.

The rules of the common law were so far adopted in this State as to supply any defect which might exist in the statute laws by furnishing additional remedies for the correction of wrongs. It matters but little whether the nuisance complained of in this cause is called private or public at the common law; if either, it could be abated by the party aggrieved, if performed without a breach of the peace. Blackstone, in book III, page 5 of his Commentaries, defines a nuisance and its remedy thus : "Whatsoever unlawfully annoys or doth damage to another is a nuisance, and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as to commit no riot in the doing." So it has been held in the English courts," that if a person upon his own soil erect a thing that is a nuisance to another, as by the stopping a rivulet, and thus diminish the water used by his cattle, the party injured may enter upon the soil of the other and abate the nuisance."

2 Smith's R. 9; Comyn's Digest, title Pleader. So the general doctrine has been held in Hurt v. Albany, 9 'Wend. 571. The same doctrine is also held in Angell on Water Courses page 426, that a private nuisance may be abated by the party aggrieved if it is done peaceably and without a breach of the peace.

The obstruction of the water in the Lawson ravine was a common injury to many at work upon the ravine who had, by the necessary implication of the laws of the State which relate to mines and miners, a species of property in their mining grounds, which they had a right to protect (if they were first in the appropriation of the water for mining uses) by peaceably abating the nuisance. It might also be well deemed a private nuisance as to the particular mining grounds of defendants injured by the obstruction (as in the case above of one obstructing a rivulet out of which another's cattle drank), and being such a nuisance and hindrance to the enjoyment of a recognized property in this State, the defendants had a right to remove the dam if done in a peaceable manner. We will not permit ourselves to go behind the verdict of the jury to ascertain the facts as to the priority of the parties in their location upon the ravine. From the verdict of the jury this court will presume that the defendants were proven to have had the oldest right to the natural flow of the water in the ravine. Whether the purchase of Laird was proper or not could make no difference in this cause. Laird proceeded with others, who were made defendants in the action, to remove the dam, all of whom asserted rights which they claim to have vested prior to the erection of the same by plaintiffs.

I consider that the points made upon appeal are not well taken, and the judgment of the court below must be affirmed with costs.

WHEATLEY V. CHRISMAN.

(24 Pennsylvania State, 298. Supreme Court, 1855.)

'Right to use of water. A proprietor of land over which a stream of water runs, has, as against a lower proprietor, the use of only so much of the stream as will not materially diminish its quantity or corrupt its quality. His right is not to be measured by the reasonable demands of his business.

2 Water for farm purposes polluted by mines. Where the lower proprietor had a right, by deed from the then upper proprietor, to erect a dam on the land of the latter, in order to convey a portion of the water through an artificial channel for the purpose of watering his meadows, but had actually used it for above twenty-one years for watering horses and cattle, it was held that such use for above twenty-one years entitled him to it, and that he might maintain suit against one claiming under the former upper proprietor for polluting the stream so as to render it unfit for his cattle.

Animus-Where immaterial. Where the claim of the plaintiff is only for compensatory damages, and not founded on the animus, but on the acts of the defendant, it is not material whether or not the defendant knew the extent of the injury he was committing.

Error to the Common Pleas of Chester County.

This was an action in case by John Chrisman v. Charles M. Wheatley, to December term, 1853, for having diverted a portion of the water of a small stream from its natural channel, and also for having corrupted the water in the natural channel, part of which flowed into an artificial channel, to the injury of the plaintiff.

The stream of water, in its natural channel, flowed over the land of Chrisman, the plaintiff. In 1791 the farm of the plaintiff, and also the farm a part of which was occupied by the defendant, belonged to Lewellyn Davis, who, on 21st February of that year conveyed to his son, Joshua Davis, the farm of 96 acres and 86 perches, now belonging to the plaintiff, together with the privilege of digging and keeping in repair a dam and artificial watercourse leading from the stream on the upper tract, belonging, at the time of the trial, to Jo

1 Union Mill Co. v. Dangberg, 8 M. R. 113.

2 Att'y Gen. v. Steward, 20 N. J. Eq. 415; Crane v. Winsor, 2 Utah, 248. 3 Maye v. Yappen, 10 M. R. 101.

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seph Funk, and through a part of said tract into the farm conveyed to said Joshua Davis. The watercourse was stated in the deed to be "for the use and purpose of watering the meadows in the above described tract of land for the use and benefit of Joshua Davis," his heirs and assigns, for six days out of seven, when needed for that purpose; and at all other times; and when not so needed, the water was reserved for the use of the upper tract. The artificial watercourse leads along a meadow bank, and passes through the plaintiff's barnyard (where he was accustomed to use it to water his horses and cattle) to another meadow.

The defendant was the manager of lead mines of the Brookdale Mining Company, whose works were on land leased from the said Joseph Funk, being a part of the upper tract of Lewellyn Davis and also of works of the Wheatley Mining Company; and it was alleged by the plaintiff that impure water from the mines was pumped up into the channel of the stream so as to render it unfit for watering his cattle and for domestic purposes, and that the water was diminished in quantity.

On the trial, the deed to Joshua Davis was given in evidence on part of the plaintiff; and testimony was given to show that the water of the stream was diminished in 1853, and that it was caused by a portion of the stream being carried to the Wheatley Works.

On part of the defendant, evidence of a contrary character was given, and that the water from the mine was not usually unfit for the use of horses and cattle.

After the defendant's case was closed, the plaintiff offered to prove that he had enjoyed the use of the water for watering his cattle in the fields and barnyard for above twenty-one years. It was objected that such evidence was contrary to the limitation in the deed. The objection was overruled, and evidence was given of the plaintiff having used the water of the ditch for twenty-five years for watering his cattle.

The plaintiff also offered to prove that the water in the ar tificial channel was muddy and unfit for watering cattle. This was objected to as immaterial, but was admitted.

The defendant's counsel, in their second point, asked the court to instruct the jury that the defendant was entitled to