subsequently completed.

Ditch conveyed 420 inches of water three months in the year, which was worth to the plaintiff $360 per day.

On the first day of March, 1857, defendant wrongfully and illegally constructed a dam and ditch, and appropriated the waters of Rabbit creek to his own use, and thus prevented the waters from flowing into plaintiff's ditch, to damage of plaintiff of $12,000.

Second count: Plaintiff was, on the first day of March, 1857, and still is, the owner and entitled to the possession of the waters of Rabbit creek, by appropriation, to the extent of 700 running inches, which water flowed through his ditch, called the Irish ditch, to Spanish Flat, and was there sold by plaintiff at the rate of $7.50 per day, for one sluice-head of twelve running inches. Defendant, by means of a dam and ditch constructed by him, caused the water to flow from and out of plaintiff's ditch, and deprived him of the use thereof. Damage, $5,000.

Third count: Plaintiff is the first appropriator of the waters of Rabbit creek to the extent of 35 and 75 sluice-heads, each sluice head being twelve inches, and flowing into plaintiff's two ditches, one called the O'Brien and Brown ditch, and the other the Irish ditch, from the first of March to the middle of June in each and every year, for mining purposes. That defendant entered in and upon the same, and deprived the plaintiff of the enjoyment thereof; and, if not prevented, will destroy irretrievably all of plaintiff's just and legal rights, etc.

Complainant prays for judgment for $17,000 damages, and for an injunction to restrain defendant, etc. The complaint is verified.

Defendant, in his answer, specifically denies the allegations of plaintiff's complaint, and sets up a right, by prior appropriation, to the possession and use of eighty slnice-heads, or nine hundred and sixty running inches of the waters of Rabbit creek, and the tributary ravines, which he conveyed through his ditch to Secret Diggings and adjacent mining localities, and there sold the water for mining purposes, etc. The cause was tried by a jury.

On the trial, and after the close of the testimony and argu

ment, the court, among other instructions to the jury, gave the following:

"7. The defendant is not liable for any deficiency of water in plaintiff's ditch, unless he (defendant) was diverting from Rabbit creek more water than he was entitled to at the precise time that such deficiency existed.

"S. If the jury believe that Brown's Old Ditch, so-called, was so filled with tailings during the water season of 1857, that it was incapable of diverting any of the waters of Rabbit creek, then plaintiff can not recover for the water for that ditch.

The jury returned a verdict for the defendant. Plaintiff moved the court for a new trial, which was denied, the court rendering the following opinion:

"Upon the motion for a new trial, plaintiff files his own affidavit, in which he sets forth that he was surprised at the testimony of the witness Roberts, who testified, among other things, that from March 2d to June 14th, 1857, not over five hundred and forty-five inches of water was running and sold from defendant's ditch per day, and that a portion thereof came from the ravines, and not from Rabbit creek; and the affidavit further sets forth that plaintiff was surprised at the testimony going to show that there was water running to waste below plaintiff's dam. Upon the trial of the cause, it was admitted that defendant's ditches had priority over plaintiff's, but plaintiff contended that defendant's ditches. had been enlarged subsequent to the construction of his, and that defendant had by means of such enlargement, diverted more water than he was entitled to, to the injury of plaintiff. Defendant's counsel, on the trial, admitted that the lower part of his ditch had been enlarged in 1856, after plaintiff's ditches were constructed. Under the issues made, it was incumbent on the plaintiff to prove that defendant had diverted more water from Rabbit creek than he was entitled to, and that he (plaintiff) had been injured thereby, and to prove such facts a number of witnesses were called; and the witness Roberts, called on the part of defendant to show the quantity of water run in defendant's ditches, stated that they sold a certain number of inches, and that they sold all that was run in the ditch. This testimony was responsive to the issues inade

in the case, and simply contradictory of what plaintiff's witnesses had some of them--testified to; for it will be borne in mind that the witness referred to the quantity sold, and stated that it was all sold that run, for the purpose of showing how much did actually run through the ditch, upon the same principle that plaintiff's witnesses described the size of the ditch and the height of the volume of water running therein, to establish the same facts. Ordinary prudence' should certainly have led plaintiff to guard against such surprise as this, and if, on the trial, he believed the statement of Roberts to be untrue, and was not then prepared to show it, he should have taken a nonsuit, under the one hundred and forty-eighth section of the Practice Act: See Live Yankee Company v. Oregon Company, 7 Cal. 40; Willard v. Wetherby, 4 N. H. 118. "

Judgment was entered for the defendant, and the plaintiff appealed to this court.

FRANCIS J. DUNN, for appellant.

VANCLIEF & STEWART, for respondent.

BALDWIN, J., delivered the opinion of the court, TERRY, C. J., concurring.

This case is an action for the diversion of water. It seems to have been closely contested on the facts, and the proof was conflicting. The jury, after hearing all the testimony, found for the defendant.

This is precisely one of those suits which a jury of the vicinage are best qualified to try, and they seem to have tried it fairly, under the direction of a judge entirely familiar with this class of litigation, and who refused the application for a new trial.

This court would require a case of very palpable mistake or error to be made out before it overruled the verdict of the jury on issue of fact joined in such an action; and certainly no such case seems to be made by this record.

We think the court below did not err in the instructions given. The seventh and eighth, given at the instance of the defendant, are the only ones which appear to be assailed with

much confidence. And these, when considered in connection with the peculiar facts of this case, we think correctly state the law.

The motion for a new trial, founded on the plaintiff's affidavit of surprise, was correctly overruled. The reasons given in the written opinion of the judge below, to be found in the record, are conclusive upon this subject.

Judgment affirmed.

WEIMER V. LOWERY ET AL.

(11 California, 104. Supreme Court 1858.)

Title in United States, and utility-No defense to nuisance. In an action to abate a nuisance, to wit, a ditch constructed across the land of another without his consent, it is not a good defense for the ditch claimants that the plaintiff has no title from the United States, that his inclosure is part of the public domain; nor can they set up in their answer as a defense the great cost of the undertaking, its great length, or its utility, or the fact that it is constructed for mining purposes. Newly discovered evidence as ground for new trial. A new trial will not be granted on the ground of newly discovered evidence, which consists of a deed recorded in the recorder's office twelve months prior to the trial, and a record of a judgment in the same court in which the cause was tried.

Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.

This was an action under the 249th section of the Practice Act.

Complainant alleges that he is the owner and in possession of a lot of ground in Coloma, on which he has a family residence and cultivates a garden and orchard; that defendants, against his will, had dug a ditch across a portion of the lot for the purpose of conveying water; that by the cutting of this ditch and throwing the earth from it over a portion of his lot, it was rendered unfit for cultivation; that his property is injuriously affected, and his use of it obstructed by the ditch of defendants. He therefore asks that it be abated as a nuisance.

Defendants' answer denies the ownership of the plaintiff; upon information and belief, denies that plaintiff had ex-.

pressly forbid the construction of the ditch; but admits that he requested them to take it across the lot at a different point.

They deny that the land is injuriously affected by the ditch; but aver that it is benefited by it. Defendants also allege that the land in question was situated in the mining region; was the property of the United States, and that their ditch was constructed in 1855, for the purpose of conveying water to be used for mining purposes from the American river to gold mines in the neighborhood of the premises; was fourteen miles in length, and had cost $20,000.

The allegations were, on motion, stricken out by the court as irrelevant; the cause was submitted to a jury, who found that plaintiff was the owner, and in possession of the premises at the time the ditch was constructed; that it was cut on his land without his consent, and that the ditch injuriously affected the lot, and interfered with its comfortable enjoyment by plaintiff.

Upon this verdict a judgment was rendered, requiring the nuisance to be abated. Defendants moved for a new trial, which was overruled, and appeal taken.

SANDERSON & HEWES for appellants.

1st. The court below erred in striking out that portion of the answer which alleges that the lot claimed by the respondent, and upon which the pretended nuisance was created by appellants, was in the heart of the mineral region, and was public land, and had never been conveyed by the government to respondent or any of his grantors.

2d. The court below erred in striking out that portion of the answer which alleges that appellants' ditch was dug in the summer of 1855, and has been used ever since, and still is, for the purpose of conveying the waters of the south fork of the American river from a point about five miles above respondent's lot to gold mining localities lower down, and in the vicinity of said stream, there to be used for gold mining purposes; that the ditch is fourteen miles long, and was constructed at a cost of $20,000.

3d. The only facts upon which the judgment is based are found in the special verdict, which is as follows: