proof was unaffected by the fact that the plaintiffs used the whole or a part of the water themselves. Its market value would have been its value to them also.

We also think the testimony in relation to the effect of tunneling and drifting in another but similar locality was properly rejected. The cause of the settling and cracking of the surface of the earth under the circumstances of this case is matter of opinion rather than direct and positive testimony. The proper course in such cases is to take the opinion of witnesses who have examined the premises, and are qualified by learning, observation and experience, to judge intelligently of the cause. While the opinions of such witnesses may be founded mainly upon their observation and experience in other like cases, it is well settled that they can not, on the direct examination, be questioned as to particular instances. The reason of this rule is obvious. Different witnesses might have different theories. Their opinions might be founded upon the observance of several and distinct instances. If allowed to adduce one, they may adduce all. The opposite party would have a legal right to controvert each particular case mentioned by the witnesses, and yet be unable to avail himself of the right because of his inability to anticipate the cases mentioned and prepare for their investigation. Moreover, such a course in addition to the objection just mentioned would lead to innumerable side issues, and render the trial of a cause interminable, distractive, and enormously expensive: 1 Greenl. on Ev., Sec. 448; Central Pacific R. R. Co. of California v. Pearson, 35 Cal. 247.

The remaining point made by the appellants is, that the evidence made a case for an injunction, and therefore the court below erred in denying it. The testimony bearing directly upon this point is not voluminous, and we will therefore refer to it.

Davidson, a surveyor, testified that the earth under the ditch is composed of gravel and cement; that twenty feet of the top is cement; that there is a tunnel running from the bank under the plaintiffs' ditch; that he went into the tunnel, and found that the ground under the ditch, and in front of it, had been drifted out; that the drifts were about six feet in height; that the tunnel and drifts are one hundred and

sixty feet lower than the ditch, perpendicular measurement; that he found one cave in the drift of several feet in length; that the drifting had a tendency to weaken the subjacent support of the surface. This witness also testified that the s uicing off of the earth in front of the ditch, which, as the case shows, was done some two years and a half prior to the commencement of the action, also had a tendency to weaken the lateral and subjacent support which the ground affords to the ditch.

Anthony Clark, one of the plaintiffs, testified that the ground first cracked in March, 1867, which, as the case shows, was two years after the sluicing had been discontinued, and some six months before the commencement of the action; that the cracks were large enough to swallow all the water of the ditch; that he called the attention of the defendants to the cracks, and told them that he thought they ought to put in a flume, which they (the defendants) did; that the flume, when in, carried the water over the cracks; that the ground cracked again in the following April; that Ford, one of the defendants, called his attention to it, and asked him to turn off the water so that they could put in more flume, which was done. As to the formation of the earth, and the effect upon its surface of the defendants' sluicing, tunneling, and drifting, he testified substantially the same as the witness Davidson. He also testified that "the ditch would be destroyed anyway by the work which the defendants had done before the action was commenced;" that the surface of the earth has settled some five or six inches, and the ditch can not now be used, except in connection with the flume.

Willard, the ditch agent of the plaintiffs, testified as to the cracks and settling of the surface substantially the same as the last witness, and that he knew of no cause for it except the doings of the defendants.

Upon the foregoing testimony, so far as the effect of the defendants' work upon the ditch is concerned, the plaintiffs rested their case. It is to be observed, at this place, that the plaintiff's neither alleged in their complaint, nor attempted to show by their testimony, either that the defendants had not or were not conducting their mining operations in the usual and customary mode, and with ordinary and reasonable care and skill.

Willett, one of the defendants, testified and admitted, in effect, that the mining operations of the defendants had probably caused the settling and cracking of the surface, but that they had built a flume in place of the ditch, which answered every purpose equally as well as the ditch, with which the plaintiffs seemed satisfied at the time. That the ground they were working at the time the action was on trial, and the only ground which they expected to work thereafter, was on a horizontal plane one hundred and sixty feet below that of the plaintiffs' ditch, and from thirty to forty feet farther into the bowels of the mountain than the perpendicular plane of the ditch. That, in his opinion, the work being done and to be done will not injure the plaintiffs' ditch, but that, should it result in a slide and the destruction of the ditch, the water could be easily carried across their claim in an iron or hose pipe, and that they (the defendants) would have it to do, because they could not work their mine without conducting the water across it. That the defendants are solvent, and have expended thirty or forty thousand dollars in working their claim, which is rich in gold, and worth from fifty to sixty thousand dollars.

Earl, whose testimony was more favorable to the plaintiffs than the defendants, by whom he was called, testified that drifting further back would cause the bank to cave, giving as the reason for his belief that the air will cause gravel and cement to slack.

Jones testified, in substance, that further work by the defendants, in the manner proposed, could not injure the ditch; that the defendants were doing their work carefully, and filling up as they advanced, leaving the earth about as solid as it was before; that if the ditch should give way there would be no difficulty in conveying water across the claim in a flume, as now, or by an iron or hose pipe; that the water now runs in the flume as well as it did in the ditch; that all the work which can injure the ditch was done long before the suit was commenced.

Willis Jones, the plaintiff in whose behalf the court had discontinued the case, testified to the same effect as the last witness.

The foregoing is, in substance, all the testimony bearing

upon the point before us. No finding of facts was made by the judge below, and we must therefore presume that he found all the issues against the plaintiffs. The question then is did he find any of the material issues contrary to the evidence? Into that question we can look no further than to see whether there is a substantial conflict. If there is, we must affirm the judgment. If there is not, and the evidence is against the judgment, we may reverse it and grant a new trial. Such is the rule of this court, and in respect to its application. there is no distinction between cases in equity and cases at law.

The only material issue, as we consider, in view of the relief sought, which is an injunction upon further work by the defendants without damages for past injuries, is whether such work, if allowed to go on, will irreparably injure the plaintiffs' ditch; for, assuming that the injury which the ditch has already sustained was caused by the mining of the defendants, the act has already transpired, and is therefore past prevention. As to the effect of the work which they are now doing and propose to do, the testimony is not only conflicting, but its weight is against the theory of the plaintiffs. But were it otherwise, an injunction would hardly be granted, if it be true, as stated in the complaint, that the work already done will probably cause the destruction of the ditch, and especially if it be true, as stated by the plaintiff Clark while on the witness stand, that "the ditch will be destroyed anyway by the work which was done before the suit was commenced." If the destruction of the ditch be inevitable, as Clark seems to think, irrespective of future work, we are unable to perceive how, by preventing the work, the ditch can be saved from destruction. If the destruction must come "anyway," we are unable to perceive how even a court of equity can prevent it. Assuming, then, that an injunction would have been allowed if it had been applied for at the time the work of defendants first threatened injury to the ditch, we think it clear that the plaintiff's have delayed their application until it is too late. So far as we can judge, an injunction would be ruinous to the defendants and of no benefit to the plaintiffs.

What we have said disposes of the case, but we desire to add, in conclusion, that we do not wish to be understood from

the manner in which we have treated it, as implying that an injunction would under any circumstances be allowed in this case. Upon that point we express no opinion. The relative situations and rights of the parties are peculiar. While the plaintiff's have a right of way for their ditch upon the surface, the defendants have also a right to mine in the bowels of the mountain. Such rights are not necessarily incompatible, and we do not, therefore, consider that the maxim Qui prior est tempore, potior est jure, is of controlling weight. On the contrary, the case would seem to fall under the maxim Sic utere tuo ut alienum non lædas. How far a court of equity will interfere, if at all, where such are the conditions and no negligence is charged, as in this case, it is unnecessary to consider. The general rule undoubtedly is, that a party in possession of the surface of land is entitled to the lateral support which the adjacent soil affords, and the perpendicular support which is afforded by the subjacent strata. But how far that principle will be enforced when, as here, the surface is used merely for the purpose of a ditch in which to carry water for the purpose of trade and traffic, which possibly can be carried just as well in some other way, with but a trifling additional expense and without any detriment to the trade in water, has not, so far as we are advised, been determined. Whether ditch property in the mineral regions of this State, although conceded to be real estate, used as it is for the purposes of trade and commerce, is to be regarded by courts of equity with the same measure of favor which is bestowed by them upon land which is held and cherished by the owner for itself, and not merely put to use for an ulterior object, admits at least of serious doubt. Such ditches are more or less temporary. They are not valuable as land. Their value depends. entirely upon the demand for water, and when the demand has ceased they become worthless. The qualities upon which the common law grounds its peculiar fondness for land, and the reasons why courts of equity will interfere to protect it, would, therefore, scem to be measurably wanting. See the case of Humphries v. Brogden, 12 Queen's Bench, 739; and Gibson v. Puchta, 33 Cal. 316.

Judgment affirmed, and remittitur directed to issue forth