respondent's counsel have discussed that portion of the testimony in their brief; but it was not in the case upon the theory adopted by the court in stating the law to the jury. In the second instruction the court speaks generally of "obstructions caused by tailings coming down the stream from mining claims above"; and in the third, of " tailings coming down said stream from mining claims of other parties above said dam."

Judgment and order denying a new trial reversed and new trial granted.

Mr. Justice SANDERSON expressed no opinion.

PROCTOR V. JENNINGS.

(6 Nevada, 83. Supreme Court, 1870.)

Upper and lower dams-Effect of booming-Damnum absque injuria, In 1865, A built a dam and mill upon a certain stream; afterward B built another dam about 155 feet below the mill-wheel of A, which lower dam of B, however, at the time when constructed and for a long time afterward, in no wise interfered with the mill or dam of A; but in 1869, parties owning mining claims above both dams began to work their claims by a sys em entirely unknown at the time the dams in question were built, which system (booming) consisted in alternately checking the flow of water and then letting it out suddenly at a full head, whereby great quantities of tailings were carried down stream, which, settling between the two dams in question, caused an obstruction to the mill-wheel belonging to A, the plaintiff. Held, that B, the defendant, was not responsible; that it was a damage resulting only as a remote result of his building the lower dam, and that it was a clear instance of damnum absque injuria. 'Righ's of subsequent appropriators of water. Priority of appropriation where no other title exists, undoubtedly gives the better right. All the rights of all subsequent appropriators are subject to his who is first in time. The subsequent appropriator only acquires what has not been secured by those prior to him. But what he does thus secure is absolute and perfect, and his right is to be determined by the condition of things at the time he makes his appropriation.

Appeal from the District Court of Storey County, First Judicial District.

1 Compare Nevada Co. v. Powell, 4 M. R. 253.

The opinion fully states the facts.

HILLYER, WOOD & DEAL, for appellant, who was defendant below.

HENRY K. MITCHELL, for respondent.

By the Court: Lewis, C. J.

1. "In the year 1865, the plaintiff constructed a water mill upon Six-mile cañon, the motive power of the same being the water of the stream of said cañon, conducted therefrom by a ditch leading from a point above the mill to the said water-wheel. After passing over said wheel, the water fell into the channel of said stream and passed on down the same, there being sufficient fall from the bottom of the wheel to the channel, and from there down sufficient grade to the channel to enable the water leaving the wheel to pass off freely and without obstructing the working of the same. As to the defendant, the plaintiff was the prior appropriator of the water privilege to the extent above mentioned, and he has since done nothing by which he has lost any of the rights so acquired, or diminished their extent.

2. "Subsequently to the acquisition of plaintiff's rights, and in October, 1867, the defendant constructed a dam across the channel of said stream, at a point about one hundred and fifty-five feet below the wheel of plaintiff, and below and east of the east line of plaintiff's land, together with a waste-way, flume and ditch, for the purpose of furnishing water power for certain works of defendant below. At the time of construcing said dam, the defendant was fully apprised of the prior rights of plaintiff, and was expressly notified by him not to obstruct the same in any manner to interfere with those rights.

3. "The effect of the construction of defendant's dam was to cause the sediment coming down said stream to gather above the dam to the level of the bottom of the ditch leading from the same, and to cause the water of the stream to set back toward plaintiff's wheel, upon the same level, and thus diminish very materially the grade of the channel below said wheel. But at the time of its construction it did not so back the water or sediment, or diminish the grade as to prevent

the free flow of the water froin plaintiff's wheel, and did not at all interfere with the working of the same.

4. "The dam so constructed by defendant has not since been altered in height, and there has been no alteration of the level or altitude of the flume and ditch leading from the same. During the latter part of the year 1867, the whole of the year 1868, and up to the day of June, 1869, the works of defendant below did not in any manner obstruct or interfere with the free flow of the water from plaintiff's wheel, which was in use during all said period, or in any manner obstruct or interfere with the working of said wheel; and had the waters of said stream continued to flow down to the said works of plaintiff and defendant in their natural state and condition in which they did run and flow down to the same at the time of defendant's appropriation, and during the period aforesaid, up to the day of June, 1869, the said works of defendant would not materially have interfered with the workings of plaintiff's wheel, or the free flow of the water therefrom.

5. "About the day of June, 1869, certain parties, who were in the possession of mining claims along the channel of said stream above the works of both plaintiff and defendant, adopted a new mode of working their claims and of using the waters of the stream in the working thereof. They had theretofore so used the waters as to permit the same to flow down naturally and regularly, and the change consisted in penning the water up for longer or shorter periods in reservoirs constructed for that purpose, and then permitting the same to escape suddenly and in large quantities, and pass down the stream with a flood. The effect of this was to carry down by the power of the floods of water so discharged, large amounts of tailings and sediment collected in said reservoirs and lying in the channel of said stream to the works of defendant, and thereby fill up his dam above the ordinary level of discharge, and to cause the same to accumulate in masses above said works as far back as the wheel of plaintiff, and to cause the back-water and sediment to obstruct the free flow of water from the wheel of plaintiff, and prevent the regular and efficient working thereof.

.

6. "Had it not been for the acts above mentioned, the

works of defendant would not have materially interfered with the working of plaintiff's wheel; and on the other hand, had it not been for the works of the defendant, the acts of said miners would have done no injury to the plaintiff; and the grade of the channel below said wheel, if left in the condition in which it was prior to the construction of defendant's dam and ditch, would have been sufficient to discharge freely all the water and sediment coming down said stream, notwithstanding the irregular flow thereof."

Upon these facts, found by the court below, a decree was rendered enjoining the defendant from continuing his dam at such a height as in any manner to interfere with or retard the revolutions or workings of the plaintiff's water-wheel attached to the mill and buildings mentioned in the complaint. The defendant appeals.

But one question is presented by the record, or need be considered by the court, namely: Can a dam erected on a stream in a manner in no wise injurious or prejudicial at the time of its erection to a mill-owner above, but which, by reason of circumstances happening subsequently, and which could not have been anticipated at the time, operating in connection with it, and so causing the water to flow back upon the mill above, be held such obstruction as to authorize its abatement, or justify a recovery of damages against the person so building the dam, for injury thus occasioned? We think not. Priority of appropriation, where no other title exists, undoubtedly gives the better right. And the rights of all subsequent appropriators are subject to his who is first in time. But others coming on the streamn subsequently may appropriate and acquire a right to the surplus or residuum—so the rights of each successive person appropriating water from a stream are subordinate to all those previously acquired, and the rights of each are to be determined by the condition of things at the time he makes his appropriation. So far is this rule carried, that those who were prior to him can in no way change or extend their use to his prejudice, but are limited to the rights enjoyed by them when he secured his. Nor has any one the right to do anything which will, in the natural or probable course of things, curtail or interfere with the prior acquired rights of those either above or below him on the same stream.

The subsequent appropriator only acquires what has not been secured by those prior to him in time. But what he does thus secure is as absolute and perfect and free from any right of others to interfere with it, as the rights of those before him are secure from interference by him. Upon what principle, then, can it be held that he is responsible for injuries resulting to the prior appropriators, occasioned not immediately by his acts of appropriation, but by unfore seen and fortuitous circumstances happening after his appropriation, and acting in connection with the means employed by him to appropriate the surplus water?

Here the defendant had the undoubted right to make use of all the water flowing from the plaintiff's mill, and to build a dam or employ any other means of appropriation not prejudicial to the rights of the plaintiff. But at the time Jennings built his dam, it did not in any way interfere with the right of Proctor, nor is it claimed that in the ordinary conrse of things it would have done so, or that it could have been anticipated that the immediate cause of the injury would have occurred. Under such circumstances, the law, we think, does not hold the defendant liable, nor adjudge his dam such an obstruction or nuisance as may be abated.

The Inhabitants of China v. Southwick, 3 Fairf. 238, was an action on the case brought to recover damages for an injury done to the plaintiff's bridge at the head of Twelve-mile pond, raised as it was alleged by the defendants at the outlet of the pond.

It appeared that the defendant built the dam at the point designated, and thereby raised a head of water, but not so high as to flow or injure the bridge of plaintiffs. Afterward, however, by heavy rains and a violent storm of wind the waters were thrown upon the bridge, and it was destroyed. The court held the defendant not liable, saying: "The jury found that the head of water raised by the defendant's damn was not, at the period complained of, high enough to flow the plaintiff's bridge or do damage thereto. Its erection, then, was a lawful act, not in itself calculated to do any injury to the plaintiffs. Their loss was occasioned, as the jury have found, by great rains, or by the violence of the wind. If the dam had not raised the water to a certain height, the rain or the wind superadded might not have done the