If

condition of things-not whether they might become a nuisance at some future time, when the plaintiff might see fit to put its ditch in a condition to enjoy its right to the water. The plaintiff only had a right, by virtue of prior appropriation, to the use of the water in its natural flow. Other parties above were equally entitled to its use, so long as it was used in such a manner as not to injure the plaintiff. plaintiff's ditch and dam had, for seven years, or any less period of time, as defendants claim, been in such a condition that it was impossible to turn the water into the ditch, or for the ditch to carry it, the plaintiff could not be injured, or the reservoirs become a nuisance, until the ditch should be repaired and placed in a condition to be available for the purpose designed. An action could not be maintained to abate the reservoirs as a nuisance, till they actually became such. There is no claim that plaintiff was entitled to or desired the water for any other purpose than to convey in their ditch for sale.

But the plaintiff says there was also evidence tending to show that in 1860, a year or more before the reservoirs were built, the defendants themselves washed away plaintiff's ditch and dam, and that plaintiff at that time endeavored to repair it, and was prevented from doing so by the defendants, and for this reason the instruction was erroneous, and liable to mislead the jury. There are two answers to this: Firstly, the plaintiff is suing to abate a present nuisance, erected long since the transactions referred to, and not to recover damages for destroying plaintiff's dam and ditch in 1860, and a recovery must be had, if at all, upon the case stated in the complaint. Secondly, it is a question for the jury to determine what facts are established by the evidence, and they might have found against the plaintiff on that point. They were, therefore, entitled to "look at the evidence" referred to, as directed by the court, in connection with the other evidence in the case. For the same reasons, the instruction asked by plaintiff (which was precisely the reverse of the one given and just considered) was properly refused.

The defendants called one John Tyler as a witness. His first testimony was: "I am a member of the Boles claim; bought in when he did, and purchased from the same par

ties." He then went on, without any objection, and testified at considerable length upon the merits of the case. After which the "plaintiff, by his attorney, moved to strike out the testimony of said witness, Tyler, because he was interested. Defendant objected, and the court sustained the objection, and plaintiff excepted to the ruling of the court." This ruling is assigned as error. Admitting, for the purpose of the decision, the notice given under section four hundred and twenty-two of the Practice Act to be insufficient to authorize the witness to testify, we think the plaintiff waived the objection on the ground of interest by not taking it in time. The witness distinctly informed them at the threshold of his testimony that he was interested. Then was the time to make the objection. Parties will not be permitted to experiment upon a witness by admitting his testimony without objection, and if it turns out to be favorable, accept it, but, if unfavorable, move to strike it out. Had the plaintiff been ignorant of the interest of witness till it was developed by his testinony at this point of the trial, and the plaintiff, as soon as the interest was discovered, had moved to strike out his previous testimony, the court would, doubtless, have granted the motion, if there was no other legal reason for denying it. But all the testimony sought to be struck out was taken without objection, after the witness had informed plaintiff and the court of his interest; and the motion was properly denied on the ground that the objection came too late.

The last error relied on in appellant's brief is that the verdict is not warranted by the evidence, and is against law. It is hardly necessary to say that the record does not present a case which, under the uniform decisions of this court, would justify us in reversing the judgment on this ground.

No error having been brought to our notice, the judgment is affirmed.

Afirmed.

HILL V. SMITH.

(27 California, 476. Supreme Court, 1865.)

Pleading-Form of denial. Any form of denial which meets and traverses the allegation, is admissible. If the denial is not evasive, but directly traverses the matter alleged, it is good, without regard to the mere form in which it is expressed.

Evidence sufficient to justify findings relative to gold mining. A jury is justified in finding that the defendant is engaged in mining for gold when both plaintiff's and defendant's witnesses speak of his "claim," and of his labor as "mining," and also of his sluice-boxes," "wing dam," and of his mode of "working claim" and "depositing tailings," when there is no counter testimony.

1 Damage from mining above ditch head. A miner who works his claim above the head of a ditch previously located, so as to mingle mud and sediment with the water, and thus injures it for the use to which the ditch owner has applied it, or so as to fill up the ditch and reservoirs, thus lessening their capacity and increasing the expense of cleaning them, is liable for the damages thereby occasioned.

Special injury to water used by hydraulic, on account of sediment, considered as an element of damage in action for filling ditch with debris.

Idem-Reasonable care no excuse. How carefully or cautiously the miner worked was a matter of no consequence, for if his work in fact injured the ditch owner, he was none the less liable to an action. Dictum: Damnum absque injuria. The notion that, as between ditch owners and miners using the water of a stream in the mineral regions of the State for mining purposes, the law tolerates and winks at some uncertain and indeterminate amount of injury by the one to the prior rights of the other, is without any substantial foundation. Common law controlled by conditions. The reasons which constitute the groundwork of the common law upon the subject of water rights, remain undisturbed. The conditions to which courts are called upon to apply them are changed, and not the rules themselves. The maxim sic utere tuo ut alienum non lædas, has lost none of its governing force. Maxims controlling the relative rights of miners and ditch owners and of prior and later appropriators.

2 Test of injury to water rights. The question of injury to water rights by diminution or deterioration, must be determined in view of the use to which the water is applied, in connection with other circumstances. The question is, has the enjoyment of the water for the purposes for which the first appropriator claims it, been impaired by the acts of the subsequent claimant?

1 Hill v. King. 4 M. R. 533.

2 Union Co. v. Dangberg, 2 Saw. 450; Post IRRIGATION.

Appeal from the District Court, Fourteenth Judicial District, Placer County.

This action was commenced May 26, 1863. The complaint averred the excavation of a ditch for the conveyance of water for mining purposes from Indian cañon to Iowa hill, by plaintiff's grantor, in 1852, and the continuous use of the water of the cañon in the ditch from that time up to the commencement of the suit; and that at the time the ditch was dug the water flowed down in a clear state, without any mixture of mud or sediment, and so remained until the acts of defendant complained of; and that the water, when in a clear condition, was more valuable and profitable to plaintiff for sale for mining purposes than when mixed with mud and sediment. That the defendant had been engaged for four weeks in digging up the bed of the cañon at points from six hundred to one thousand feet above the head of the ditch, and washing down the earth with the water into the ditch, thereby mixing the earth, mud and sediment with the water, so that the same settled in the bottom of the ditch and reservoirs, and lessened their capacity and increased the expense of cleaning the same. That the miners who purchased the water from plaintiff used the same through hose, and that when it was loaded with mud it destroyed their hose, etc., and that plaintiff's sales of water had been injured thereby.

The complaint prayed for judgment for damages, and for an injunction.

The answer did not deny in express language the allegations of the complaint, but in answer thereto stated that the waters of Indian cañon had not flowed down in a clear state, and that defendant had not washed any earth into plaintiff's ditch, etc.

The defendant, on the trial, proved that he had located a claim above the head of the ditch a short time before the suit was commenced, and was engaged in working the same, but introduced no evidence to show that he had found any gold there. The evidence showed that the bed of the cañon above the head of the ditch was about one hundred feet in width, that the earth was from three to four feet in depth, and that the defendant used the water of the cañon to work his claim, and that after the water left the claim it flowed into the ditch,

The court gave the following instructions to the jury, to which plaintiff excepted:

"It is very difficult to state with exactness the rights of a ditch owner as against miners who subsequently locate claims on the same stream above the head of the ditch. Our courts have endeavored to adopt those rules in relation to the subject which will allow, as far as possible, both these classes of locators upon the public domain to enjoy their property. Of course, if the first locator of a water ditch upon a clear stream was held to be entitled to the continuous nse of the water in a pure state, then large regions of rich mining country would be kept from settlement and development. On the other hand, if miners were allowed to locate claims immediately above the heads of ditches, and to mine there to the same extent and with the same rights as elsewhere, then large ditches, costing thousands of dollars, would be unjustly at the mercy of every adventurer.

"The rule in such cases, so far as any can be definitely stated is this: The subsequent locators of mining claims on a stream above a ditch, which diverts water for sale to miners, have no right to work their claims, or run their tailings in such a manner as either to entirely obstruct the flow of water into the ditch, or to obstruct it to any considerable extent, or to diminish the quantity of water belonging to the ditch, or to so deteriorate the quality of the water as to render it unfit for mining purposes, or to so fill up the ditch with sediment as to materially lessen its value; but the mere fact that their mining operations muddy the water, rendering it less valuable, though not unfit, for mining purposes, or deposit sediment in the ditch to only such an extent as may be easily removed, without great cost, does not render them liable in an action like the one at bar.

"If, therefore, in this case you believe from the evidence that defendant is the bona fide owner of mining claims on the stream above the head of plaintiff's ditch; that he worked his claims in a reasonable manner, using all due precaution to prevent injury to the ditch; that the effect of his mining was only to muddy the water, but not to diminish its quantity, or to materially injure the ditch or the water, then de