PRIEST V. UNION CANAL CO.

(6 California, 170. Supreme Court, 1856.)

Improper testimony-Error without prejudice. The admission of improper testimony is no ground for disturbing a verdict where it is evident that no injury has been done.

Discretion of court in supplying omission. A court may, in the exercise

of a sound discretion, permit a party, at any time before the case is submitted, to supply an omission in the testimony occasioned by mistake or inadvertence.

Sufficiency of complaint to admit of proof of diversion. A complaint alleged that "plaintiffs are entitled, by virtue of prior appropriation to all the water flowing in the cañon at the head of their ditch and that defendants diverted the water to their damage': Held, that it was not necessary to state whether the water was supplied at that point by one or more streams, in order to admit proof of a diversion of water from above the ditch.

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

This was an action brought by one ditch company against another, to determine the right to the use of water and for damages, and to obtain a perpetual injunction.

The complaint alleges that the plaintiff's have been, since December, 1853, the owners of a ditch known as "Priest & Co.'s Ditch," leading from a point on the north bank of a stream known as North Shirt Tail Cañon; that said ditch not being of sufficient capacity, they took occasion to enlarge it in December, 1853, and completed the enlargement in September, 1854, to a capacity of 1,584 inches of water; that their ditch was the first constructed leading from said stream, and that they are entitled, as first appropriators, to its waters to the extent of the capacity of their ditch; that the defendants, subsequently to the enlargement of plaintiffs' ditch, constructed a ditch leading from a point about two miles above the head of plaintiffs' ditch, thereby diverting the waters naturally flowing through said stream, and diminishing the amount of water to which plaintiffs were entitled.

The answer avers that defendants' ditch was located, surveyed and commenced in April, 1854, and before the enlarge

ment of plaintiffs' ditch, which, before its enlargement, they aver, had a capacity of only 200 inches of water; and they deny that plaintiffs are entitled to any more, and deny that defendants' ditch has diverted the water so as to cause a diminution of that quantity.

After the defendants had rested their case, the court allowed the plaintiffs to call a witness to prove that after the defendants had completed their ditch and the plaintiffs had completed their enlargement, the defendants constructed a ditch to the head of their first ditch from a point on the south branch of said stream above plaintiffs' ditch, and above the junction, by means of which they emptied the waters of the south branch into the north branch above defendants' original dam, and from that point carried the waters through their old ditch to the diggings below. The defendants objected to the introduction of this testimony, on the ground that it was not offered by way of rebuttal, and that it was not admissible under the pleadings.

The jury found a verdict that the plaintiffs were entitled to 250 inches of water, from the north branch of the north fork of the cañon, and to all the water of the south branch. Judgment accordingly. Defendants appealed.

DIBBLE & MYERS, for appellants.

HALE & HILLYER, for respondent.

The opinion of the court was delivered by Mr. Justice TERRY. Mr. Chief Justice MURRAY concurred.

This was an action to determine the right to the use of water, plaintiffs claiming by virtue of prior appropriation. The case was tried below by a jury, and judgment rendered in favor of plaintiffs.

Exceptions were taken on the trial to the admission of testimony to show that plaintiffs had, before the construction of defendants' canal, bargained for lumber, and posted notices of their intention to enlarge their ditch, so as to appropriate all the water flowing in the stream at its head. Whether this testimony was admissible or not, it is not necessary for the purposes of this case to inquire, for the reason that the verdict

of the jury clearly shows that defendants were not prejudiced by it; and where it is evident that no injury has been done, the admission of improper testimony is no ground for disturbing a verdict.

It is also contended that the court erred in allowing plaintiffs, after defendants had closed their evidence, to introduce a witness for the purpose of showing that defendants had, subsequent to the completion of plaintiffs' ditch, extended their canal so as to carry off the water of the south branch of the cañon, which had been before appropriated by plaintiffs; first, because it was new evidence, not rebutting, and upon a point not before testified to; and, second, because there was no allegation in the complaint as to said connecting canal.

It is well established that a court may, in the exercise of a sound discretion, permit a party at any time before the case is submitted, to supply an omission in the testimony occasioned by mistake or inadvertence, and unless it appears that injustice has been done by the abuse of this discretion, the admission of such testimony is no ground for reversal.

As to the second objection, the complaint alleges that plaintiffs are entitled, by virtue of prior appropriation, to all the water flowing in the cañon at the head of the ditch, and that defendants diverted the water to their damage.

This allegation was sufficient for the information of defendants, and it was not necessary to state whether the water was supplied at that point by one or more smaller streams.

From a careful investigation, we conclude that there is no error sufficient to disturb the judgment; it is therefore affirmed with costs.

Affirmed.

BURDGE V. UNDERWOOD.

(6 California, 45. Supreme Court, 1856.)

'Mining and agricultural rights under local statute. In permitting miners to go upon lands occupied by others for agricultural and grazing purposes, the legislature legalized what would have otherwise been a

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1 Rupley v. Welch, 4 M. R. 243; Ah Yew v. Choate, 1 M. R. 492.

trespass, and the act can not be extended by implication to a class of cases not specially provided for; e. g., it can not be extended in favor of a ditch for mining purposes.

Ditch across ranch claim. A miner has no right to work within the inclosure surrounding a dwelling house, corral and other improvements of another.

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

The plaintiff brought his action to abate a nuisance in digging a ditch through plaintiff's inclosure, and for damages.

The defense set up is that the ditch was made to conduct water for mining purposes, and that the land is public land, only occupied by plaintiff for agricultural and grazing purposes.

By the finding of the court, it appears that in 1852 the plaintiff took up a tract of public land which he has ever since used for agricultural and grazing purposes. "That within the time allowed by law, and before the commission of the acts complained of, the plaintiff had constructed a corral, dwelling and outhouses, and fences, greatly exceeding in value the sum of $200. That while plaintiff was there residing upon, cultivating and grazing said land, the defendants, for the purpose of conveying water to certain mining claims owned by them, and distant about one mile from plaintiff's premises, constructed the ditch mentioned in plaintiff's complaint, through a part of plaintiff's inclosures, and within twenty-five or thirty feet of plaintiff's corral, at the time and afterward used by him for corraling his cattle, and to the depth, near said corral, of about six feet. That said ditch was dug against the wishes and consent of plaintiff for the purpose aforesaid, and upon the most practicable route to convey the water to said claims from a ravine above the premises of the plaintiff. That it could have been constructed so as not to run through or interfere with the plaintiff's premises, but at a greatly increased cost." * * "That a portion of said premises, some distance from said corral, had been prospected and found to contain gold. That said ditch prevents plaintiff from using his corral without endangering his animals." The court also finds the actual damage sustained by plaintiff and the cost of

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filling up the ditch, making in all $114, for which sum and for the abatement of the nuisance the court gave judgment. Defendants appealed.

R. S. MESICK, B. A. MYERS and CROCKER & ROBINSON, for appellants.

Cited Stoakes v. Barnett, 5 Cal. 36; McClintock v. Bryden, Id. 97; Irwin v. Phillips, Id. 140; Hicks v. Bell, 3 Cal. 219.

MILLS & HILLYER, for respondent.

The opinion of the court was delivered by Mr. Justice HEYDENFELDT. Mr. Justice TERRY concurred.

In Stoakes v. Barrett, 5 Cal. 36, McClintock v. Bryden, Id. 97, and Irwin v. Phillips, Id., we decided that the prior possessory rights of settlers on the public lands for agricultural and grazing purposes, must yield to the rights of miners to extract from the land the precious metals. This was a necessary deduction from the statute, which expressly makes the distinction. But this statute can not be extended by construction. If so, it would require us to overturn other well defined and settled principles. In Tartar v. Spring Creek Co., 5 Cal. 395, we said: "The current of decisions of this court goes to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner." That "this policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the right of the agriculturist is made to yield to that of the miner when gold is discovered in his land."

In Fitzgerald v. Urton, 5 Cal. 308, it is said: "In permitting miners, however, to go upon lands occupied by others, it (the legislature) has legalized what would have otherwise been a trespass, and the act can not be extended by implication to a class of cases not specially provided for."

It results from a review of these decisions that there was no error in the opinion of the district court, and the judgment is affirmed.

Affirmed.