was an old flume below the dam in the cañon, but none opposite our claim."

On cross-examination, Stone said: "Knew when we located our claims that Bumpus owned the bed of the cañon. Had known it for several years. His cañon-claim extended from above our claims, down the bed of the cañon below where he built the dam. We never owned or claimed to own any of the bed of the cañon."

The defendants moved for a nonsuit, because "the evidence showed that when plaintiffs' claims were located the defendants owned, and had owned and possessed Indian Cañon, and that plaintiff's had never acquired the right to use the bed of the cañon to work their claims."

The other facts are stated in the opinion.

Jo. HAMILTON, for appellants.

C. A. TUTTLE, for respondents.

By the Court: NILES J.

This case was once before this court npon appeal, and is re-ported in 40 Cal. 428,' and the judgment in favor of the plaintiff was then reversed and a new trial granted. Upon the second trial a judgment of nonsuit was rendered against the plaintiff, and from this judgment and the order overruling plaintiffs' motion for a new trial this appeal is taken.

In the former opinion (which is now the law of this case) it was said, that "to enable the plaintiffs to recover, it should have appeared at the trial: First, that the plaintiff's owned the ground claimed by them; second, that the dam prevented them from working it to advantage; third, alternatively, that the defendants had no title to the bed of the cañon, or if they had, that their right was acquired subsequent to that of the plaintiffs, or if prior, that the dam was not needed to enable the defendants to work to advantage."

There is no variance between the facts presented upon the former and the present appeal material to the decision of the case. As then, the plaintiffs' ownership of the mining ground claimed by them, and that the dam erected by the defendants prevented the advantageous working of plaintiffs' ground,

14 M. R. 271.

must be conceded.

The title of the defendants to the bed of the cañon, and that the right of the defendants was prior to that of the plaintiffs, was admitted by the testimony of the plaintiff Stone, and was not contradicted by any other testimony. There was no testimony tending to show that the dam was not beneficial to defendant, or requisite to the advantageous workings of his claims. The declaration of the defendant prior to the construction of the dam, that he would put in a dam that would flood the plaintiffs' claims, is entirely consistent with the necessity or utility of the structure in the working of the cañon. His subsequent testimony before the justice of the peace, that he had put in the dam to flood out the plaintiffs, was qualified by the additional declaration that it was constructed for the further purpose of working the cañon. It is not within the province of a court to question the judgment of a property owner in the legitimate use of his property, or to determine whether one mode of use would be inore beneficial than another.

It was clearly shown that the construction of dams by the owners of cañon-claims for the purpose of working them, was authorized by local customs. This right being conceded, the damage that might be occasioned by such structure to a subsequent locator would be damnum absque injuria.

Judgment and order affirmed.

Mr. Chief Justice WALLACE did not express an opinion.

1. Abatement of dam by gulch miners below, upheld as the exercise of a common law right: Stiles v. Laird, 5 Cal., 120; Post NUISANCE.

2. Action for injury from breaking of dam: Boswell v. Laird, 8 Cal., 469; Post NEGligence.

3. Mining ditch, against dam built above and later: Natoma Co. v. McCoy, 23 Cal., 491; Post DITCH.

4. Mandatory writ to compel repair of dam. Falmouth v. Innys, Mosely, 87.

'THE ROCHESTER AND OLEOPOLIS OIL Co. v. HUGHEY.

(56 Pennsylvania State, 322. Supreme Court, 1867.)

Oil burning during delivery-Loss on vendor. Defendants purchased of the company, plaintiff, four barges of oil at a certain price per barrel. The barges were furnished by the defendant, and were partially filled when the oil caught fire, and barges and oil were burned: Held, that the property did not pass as fast as the oil entered the barges; that the defendant could not have been compelled to accept partially filled barges; that the delivery was not complete, and defendant not therefore liable for the value of the oil.

Idem--Control of barges during delivery. Evidence that by the custom of the trade at the place of delivery the barges to receive the oil were, during the delivery, in the custody and control of the purchaser, was properly rejected as not aiding the fact of delivery.

Error to the Court of Common Pleas of Allegheny County.

In the court below, the Rochester and Oleopolis Oil Company brought an action of assumpsit to September, 1866, against J. M. Hughey, to recover the price of a quantity of oil, alleged to have been sold and delivered by the plaintiffs to the defendant.

The oil having been burned, the question was whether the delivery was complete before the burning.

The plaintiffs gave evidence, by the deposition of A. L. Burnett, their agent, that he sold to Owsten, the agent of the defendant, four barge loads of oil, about 2,200 barrels, at $4.50 per barrel, deliverable at Oleopolis, to be measured in the iron tanks of the Pennsylvania Tube Company.

The tube company receives the oil at the oil regions in their tubes; it is transported through the tubes and received into the tanks of the company at the several shipping points on the Allegheny river. The oil of the respective owners is not kept separate, but is measured when received by the tube company, and is delivered to the order of the owner by measurement at the tanks.

The evidence of plaintiffs further was, that 495 gallons had been run, on the afternoon of June 19, 1866, into a barge

1 Cited Sneathen v. Grubbs, 4 M. R. 289.

furnished by Owsten; another barge was placed under the tanks, and about 450 barrels had passed into it, when the oil took fire, and both barges and the oil were burned.

The plaintiffs then offered to prove that by the custom of the trade at Oleopolis, the barges to receive the oil were, during the delivery, in the custody and control of the purchaser. This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed.

Owsten, the defendant's agent, testified for him, that he made the contract for four boat loads of oil, about 2,000 barrels; he sent two boats to receive it; he received word that his boat was drawing 25 inches of water, and the river was falling; he went to Oleopolis, and found the river rising, and that another boat was loading outside of his; he told the agent of the company that he would load his boat five inches more, and therefore did not move her from the wharf. After the boat that had been loading near his was filled and moved away, he placed an empty boat by his first boat, and the tube company's hands let the oil into the second boat; before this boat was full, drawing but about 17 inches, it took fire, and both boats with oil were burned. He testified also, "the boats were not in a condition to run to Pittsburgh; he intended to put more in them, to fill them to 30 inches of water."

In rebuttal, the plaintiff proposed to ask the superintendent of the tube company "whether, at any time whilst you were superintending, or since, within your knowledge, the tubing company, or the owners of oil in the tanks, kept persons at the works for the purpose of taking charge of the boats whilst the oil was being delivered."

The offer was rejected by the court, and a bill of exceptions. sealed for the plaintiff.

The plaintiff requested the court to charge the jury:

1. That if the oil sold by plaintiff to Hughey was to be measured in the tanks of the Pennsylvania Tubing Transportation Company, and delivered in barges furnished by Hughey, and the barges were, during the course of delivery, in possession and control of Hughey, or his agents, the oil was delivered as soon as it entered the barges, so far as to change the property as between seller and buyer, and the plaintiff would be entitled to recover the value of the oil so delivered in the barges.

2. That if the jury find that the barges were, during the time of delivery of the oil, in the custody of the plaintiff, nevertheless, as soon as any portion of the oil was separated from the common bulk, by measurement from the tanks, it became the property of the defendant, and was at his risk, and the plaintiffs would be responsible only for loss occasioned by their negligence.

3. If the jury find that it was the duty of the Pennsylvania Tubing Transportation Company to take charge of and control the barges while the oil was in course of delivery, that the company would be the common agent of plaintiff and defendant, and any portion of the oil, as soon as separated from the common bulk, would be the property of the defendant, and at his risk, and the plaintiff would be entitled to recover for the value of the oil so delivered.

The points were all refused.

The defendant, in his 2d point, requested the court to charge that under the contract the defendant was not bound to accept a delivery of oil from the plaintiff in any less quantity than that of one full boat; the question whether the boat was full or not to be decided by the defendant or his agent, Mr. Owsten, only.

To which the court answered: "Affirmed if you believe the contract to be for the sale of oil by the boat-loads."

The court (STOWE, A. J.) charged:

"The first point is as to what the contract was.

"If it was to be delivered in boat-loads, and the purchaser had the right to say when the boat was loaded, and you should find that this boat was not accepted by defendant's agent, and that he was not bound to accept it because it was not a boatload, that is, not filled so that he was bound to take it from the vendor, then there was no delivery in law, and plaintiff

can not recover.

"If you should find, however, that the first boat was reasonably loaded, so that purchaser was bound to accept, or that the boat was actually taken into his charge so as to waive the right to have more oil put into it, then plaintiff can recover for that.