ANGUS McLEOD, Respondent, v. MILLER & LUX, PACIFIC LIVESTOCK COMPANY, JOHN B. GALLAGHER, and J. C. SNYDER, Administrator of the Estate of Charles Snyder, Deceased, Appellants
McLeod v. Miller & Lux
ANGUS McLEOD, Respondent, v. MILLER & LUX, PACIFIC LIVESTOCK COMPANY, JOHN B. GALLAGHER, and J. C. SNYDER, Administrator of the Estate of Charles Snyder, Deceased, Appellants.
[Nos. 1944 and 1967]
ANGUS McLEOD, Respondent, v. MILLER & LUX, PACIFIC LIVESTOCK COMPANY, JOHN B. GALLAGHER, and J. C. SNYDER, Administrator of the Estate of Charles Snyder, Deceased, Appellants.
[153 Pac. 566 ; 167 Pac. 27]
1. Evidence — Opinions—Ultimate Fact — Exclusion.
Where, in an action for the overflow of plaintiff’s ranch by defendant’s dam, nonexpert witnesses testified in detail to the facts as to previous overflows, and the location of various dams and ditches was minutely described by them, the opinion of such witnesses as to whether defendants’ dam caused the overflow should have been excluded, since witnesses cannot testify to matters of ultimate fact, except where it is impossible for them to detail the evidentiary facts so as to enable the jury to draw a conclusion.
2. Evidence — Physical Law — Refutation.
Where the testimony of witnesses is refuted by physical law or matters of common knowledge, no probative force can be allowed such testimony.
3. Evidence — Experts—Ultimate Facts.
Where, because they are unknown, it is impossible to apply fixed natural laws to the solution of an issue, expert testimony may be considered as well as facts established by the testimony of other witnesses as the best means available of determining the truth.
4. Waters and Watercourses — Flowage — Independent Acts — Liability.
Where the dam of other parties in conjunction with that of defendants caused the overflow of plaintiff’s ranch, defendants were not liable for the whole damage, since, when two or more parties act each for himself introducing the result complained of, they cannot be held liable for the acts of each other.
5. Waters and Watercourses — Overflow — Future Injury — Prophecy.
In an action for injury to plaintiff’s ranch caused by an overflow from defendants’ dam, it was error to allow testimony of a mere prophecy made by a third person to the witness several years before the action that the dam if constructed higher would ruin plaintiff’s land.
0. Evidence — Opinions—Extent of Damage.
In an action for the overflow of plaintiff’s ranch from defendants’ dam, it was error to allow a witness to give his opinion as to the extent of the damage done; the proper method being to have the witness testify to the value of the ranch before and after the overflow.
7. Depositions — Reading by Other Party — Objection by Party Taking.
Where testimony legally objectionable in substance was elicited from the plaintiff on cross-examination by his attorneys in his deposition taken by defendants, and the deposition was read in evidence by plaintiff as provided for by Comp. Laws, 3504, thereby making the deposition plaintiff’s own evidence under the provision to that effect of section 3505, an objection made by defendants on the trial to the admission of such objectionable testimony should have been sustained, though the deposition was taken on defendants’ motion, since, under a further provision of section 3504, the evidence taken in a deposition is subject to all legal exceptions.
S. Depositions — Testimony—Objection at Trial.
The objection to such substantially inadmissible evidence was properly made at the trial instead of at the taking of the deposition, under the provision of Comp. Laws, 3504, that depositions may be used upon the trial subject to all legal exceptions.
ON REIíEARING
1. Evidence — Opinion—Ultimate Pact.
In an action for the overflow of plaintiff’s ranch by defendants’ dam, where nonexpert witnesses testified in detail to the facts as to previous overflows, and the location of various dams and ditches was minutely described by them, the opinions of such witnesses as to whether defendants’ dam caused the overflow should have been excluded, as witnesses cannot testify to matters of ultimate fact, except where it is impossible for them to detail the evidentiary facts so as to enable the Jury to draw a conclusion.
Appeal from First Judicial District Court, Lyon County; Frank P. Langan, Judge.
Action by Angus McLeod against Miller & Lux, Pacific Livestock Company, John B: Gallagher, and J. C. Snyder, administrator of the estate of Charles Snyder, deceased. From a judgment for plaintiff, defendants appeal.
Reversed
(McCarran, J., dissenting).
W. A. Massey, Edward F. Treadwell, Cheney, Downer, Price & Hawkins, and Charles B. Henderson, for Appellants :
The complaint does not state-a cause of' action, the findings do not support the judgment, and the facts do not show any legal liability. No direct trespass is alleged or claimed, nor is it alleged or claimed that the dam directly overflowed the land. If injury is merely caused indirectly by lawful act, there can be no recovery in the absence of negligence. The maintenance of a dam in a watercourse of the State of Nevada for the diversion of water for irrigation is a lawful act. (Bliss v. Grayson, 56 Pac. 231; Fresno v. Fresno Canal Co., 98 Cal. 179; Shoemaker v. Hatch, 13 Nev. 261.)
The complaint fails to state a cause of action, because it contains no allegation that any of the defendants did anything which caused the river to fill with sand, or that the dam was in the river, or of ownership of plaintiff’s land when the dam was erected. A person is not responsible for a trespass committed by his predecessor and grantor in the ownership of land.
Where a nuisance is erected upon land, a suit to abate the nuisance cannot be maintained against a grantee of the land unless he is first given notice to abate the same, and in the complaint such notice must be pleaded, and it must be proved at the trial. (2 Farnham on Waters, sec. 566; Plumero. Harper, 14 Am. Dec. 333; Castle v. Smith, 36 Pac. 859.)
Any person has the right under the acts of Congress to erect dams on the public domain, and to back the water up the stream on public land, and successors in interest take the land subject to the easement of the dam. (Shoemaker v. Hatch, 13 Nev. 26; Natoma W. & M. Co. v. Hancock, 101 Cal. 42.)
Damages resulting from the doing of a lawful act can be recovered only in case of negligence. (Williams v. Michigan C. R. R. Co., 2 Mich. 259, 55 Am. Dec. 59; Fahn v. Reichart, 8 Wis. 255, 76 Am. Dec. 237; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Hoffman v. Tuolumne Water Co., 10 Cal. 413; Wolf v. St. Louis Ind. W. Co., 10 Cal. 541; Todd v. Cichell, 17 Cal. 97; Everett v. Hydraulic F. T. Co., 23 Cal. 225; Campbell v. Bear River Co., 35 Cal. 679; King v. Miles City I. D. Co., 16 Mont. 463, 50 Am. St. Rep. 506; White v. Spreckels, 101 Pac. 920; Spencer v. Campbell, 9 W. & S. 32; Losee v. Buchanan, 10 Am. Rep. 623; Marshall v. Welwood, 38 N. J. L. 339, 20 Am. Rep. 894; CosuMch v. Standard Oil Co., 122 N. Y. 118,19 Am. St. Rep. 475; Garland v. Towne, 55 N. H. 55; Hopkins v. Nutte Co., 13 Mont. 223, 40 Am. St. Rep. 438; 13 Am. & Eng. Ency. Law, 411, 413, 443; Longabaugh v. Virginia City Water Co., 9 Nev. 271; Stewart v. Birchfield, 12 Cal. App. Dec. 203; Durgin v. Neal, 82 Cal. 595; Hannahan v. St. Paul Co., 5 Dak. Tr. 22; Parrott v. Wells, 15 Wall. 524, 21 L. Ed. 206; Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. Rep. 375; Holyoke Water P. Co. v. Conn. R. Co., 52 Conn. 570; 17 Am. & Eng. Ency. Law, p. 512; China v. Southwick, 12 Me. 238; Proctor v. Jennings, 6 Nev. 83; Smith v. Agawam Canal Co., 2 Allen, 355; Shrewsbury v. Smith, 12 Cush. 177; Livingston v. Adams, 8 Cow. 175; Baily v. Mayor, 3 Hill, 531, 2 Denio, 433; Lapham v. Curtis, 5 Yt. 371; Knoll v. Light, 76 Pa. St. 268; Moore v. Berlin M. Co., 74 N. H. 305, 67 Atl. 578, 124 Am. St. Rep. 968.)
A complaint is insufficient to authorize damages on account of the maintenance of a dam, where it fails to allege in general terms, as an ultimate fact, negligence of defendants in maintaining the dam. ' (City Power Co. v. Fergus Falls, 128 N. W. 817.)
If a dam is a lawful structure, there is liability for damage to others only in case of negligence. (Hicks v. Drew, 117 Cal. 305, 49 Pac. 189.)
The court erred in holding that defendants could not object to a question propounded by them in a deposition when offered by the plaintiff, and that a question cannot be objected to on grounds other than those made at the time the deposition was taken. When a deposition has once been taken, it may be read in any stage of the same action or proceeding by either party, and shall be deemed the evidence of the party reading it. (Comp. Laws, 3504, 3505; 6 Ency. PI. & Pr. 585; Hatch v. Brown, 63 Me. 410; In Re Smith, 34 Minn. 436.)
Defendants were entitled to have the damage proved in a legal and orderly way, circumscribed by the rules of evidence, and any other manner of proving damage was prejudicial to their rights. (Crow v. San Joaquin Co., 62 Pac. 562; Edgerton v.Wolf, 72 Mass. 458; Roberts v. Kendall, 29 N. E. 487; Kyle v. Craig, 125 Cal. 107.)
Testimony of witnesses by deposition is subject to the same general rules of exclusion for irrelevancy, immateriality and incompetency, as if it were given in open court. (Am. & Eng. Ency. Law, p. 863; 6 Ency. PI. & Pr., p. 596.)
Objections to the answers of witnesses made in depositions, as hearsay, secondary, or irrelevant evidence, may be made when the testimony is offered. (Woolsey v. McMahon, 46 Tex. 63.)
Objections to the competency of deponent, or to the competency of the questions or answers, may be made when the deposition is offered at the trial. (Leavitt v. Baker, 19 Atl. 86; Lord v. Moore, 37 Me. 208; Palmer v. Crook, 73 Mass. 574; Horseman v. Todhunter, 12 Iowa, 230; Wigmore on Evidence, sec. 18, vol. 1, p. 54; Laurance v. Fulton, 19 Cal. 683; Nicholson v. Tarpey, 89 Cal. 617.)
The court erred in its instructions in regard to the contributing causes by acts of third parties. The general rule of law is that when two or more causes concur to produce an effect, and it cannot be determined which contributed most largely, or whether, without the concurrence of both, it would have happened at all, and a particular party is responsible only for the consequences of one of these causes, a recovery cannot be had, because it cannot be judicially determined that the damage would have been done without such concurrence, so that it cannot be attributed to that cause for which he is answerable. (Marble v. City of Worcester, 4 Gray, 395; Slater v. Mersereau, 64 N. Y. 138; Chipmanv. Palmer, 77 N. Y. 51; Schneider v. Second Ave. R. R. Co., 59 N. Y. Supp. 556; Blaisdell v. Stephens, 14 Nev. 17; Sloggy v. Dilworth, 36 N.W. 451, 8 Am. St. Rep. 656; Swainv. Tenn. Co., 78 S. W. 93; Draper v. Brown, 91 N. W. 1001; Sellick v. Hale, 47 Conn. 260.)
The court erred in the admission of evidence, particularly evidence based upon memorandum. A memorandum to be competent evidence must have been made at or shortly after the time of the transaction, and it must appear that the witness knew at the time it was made that it was correct. (State v. Bacon, 98 Am. Dec. 616.)
Declarations of a person through whom the defendant traces his title are inadmissible where the evidence fails to disclose his possession at the time, or whether the declarations were made before or after he parted with his title to the land. (Harrell v. Culpepper, 47 Ga. 635.) Prima facie existence of privity must be shown, as preliminary to admitting statements of persons said to stand in that relation. (Aiken v. Cato, 23 Ga. 154.)
Evidence essential to plaintiff’s recovery cannot be withheld and presented for the first time in rebuttal. (Moehn v. Moehn, 105 Iowa, 710, 75 N. W. 521.)
The court erred in permitting witnesses to give their opinions on the two ultimate questions in the case.
An expert is a person having special knowledge and skill in the particular calling to which the inquiry relates. (Hammond v. Woodman, 66 Am. Dec. 228; Rogers, Expert Testimony, p. 2; 3 Words & Phrases, p. 2594; Wright v. Williams Estate, 47 Vt. 222, 233.)
To render opinions of witness admissible on ground that he is an expert, he must have special skill in the subject concerning which his opinion is sought to be given. (Lawson, Expert and Opinion Evidence, p. 231, and cases.)
Opportunity for observation, without special study and attention, is insufficient to qualify one as an expert. (Page v. Parker, 40 N. H. 59; Goldstein v. Black, 50 Cal. 462.)
Opinion is entitled to no weight with a court or jury unless it comes from persons who first give satisfactory evidence that they are possessed of such experience, skill, or science in such matters as entitles their opinions to pass for scientific truth. (Carr v. The Northern Liberties, 35 Pa. St. 324.)
When all the facts upon which the opinion is founded can be ascertained and made intelligible to the court or jury, the opinion of the witness is not to be received in evidence. (Sappenfield v. Main St. Ry. Co., 91 Cal. 48, 60; Parkin v. Grayson-Oioen Co., 157 Cal. 41; Wigmore on Evidence, sec. 1918, p. 2552.)
All the facts within the knowledge of the witnesses, and upon which they based the opinions they were allowed to give to the jury, could not be justified as lay opinions, and were erroneously admitted. (Railroad Co. v. Yarborough, 20 S. W. 515; Railroad Co. v. Cook, 57 Ark. 387, 21 S. W. 1066; Indianapolis T. & T. Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. n. s. 143; American T. & T. Co. v. Green, 73 N. E. 707; Commonwealths. Sturtivant, 117 Mass. 122; Loshbaughs. Birdsall, 90Ind. 466; Roads. Leonhardt, 5 Atl. 346; Mann s. State, 3 South. 207; Hurt v. Railroad Co., 7 S. W. 1; Railroad Co. s. Fox, 6 S. W. 569; Stephenson s. State, 11 N. E. 360; Baltimore & O. R. R. Co. v. Schultz, 1 N. E. 324; Shaw s. Jones, 133 Ga. 446, 66 S. E. 240; Tenn. C. &I. Co. s. Kelly, 50 South. 1008.)
In no case can a witness be permitted to give testimony on the subject of cause and effect; the facts must be presented to the jury, who will determine the cause of the injury. (Chicago Co. s. Ross. 24 Ind. App. 222, 56 N. E. 451; Farbush s. Maryland Casualty Co., 91 N. W. 135; Hillje v. Hettich, 67 S. W. 90; White s. Farmers M. L. I. Co., 97 Mo. App. 590, 71 S. W. 707; Wright s. Commonwealth, 72 S. W. 340; Nichol s. Oregon S. L. R. Co., 27 Utah, 240, 70 Pac. 996; Dyshane s. Benedict, 120 U. S. 630; Ouversons. Grafton, 65 N. W. 676.)
It is clearly erroneous to permit a witness to give his conclusion on the ultimate fact in a case, except it be on a matter which is the subj ect of expert testimony. (In Re Coburn, 105 Pac. 924, 932.)
Where a witness gives inferences from facts not personally observed by him, it is necessary that the data upon which he bases his inference be specified by him, and stated as assumed or hypothetical. (Greenleaf on Evidence, sec. 441k.)
A party against whom expert evidence is offered is entitled to have an explicit statement made to or by the expert witness of the precise facts upon which his opinion is based. (Connelley v. Railroad Co., 15 N. Y. Supp. 176.)
Hypothetical presentation is necessary where the premises are not supplied by the witness himself. (Wigmore on Evidence, sec. 676; Polk v. State, 36 Ark. 117, p. 124; Williams v. Brown, 28 Ohio St. 547-51; Rogers, Expert Testimony, sec. 27, p. 64; Muldowney v. III. Central, 39 Iowa, 615; Western Union v. Morris, 73 Pac. 108; Southern B. T. Co. v. Jordan, 13 S. E. 202; Flaherty v. Powers, 44 N. E. 1074; State v. Durrant, 116 Cal. 179.)
A hypothetical question must be based on facts which there is evidence to prove, and a question which does not state the facts is improper. (Russ v. Wabash W. R. R. Co., 112 Mo. 45, 20 S. W. 472, 18 L. R. A. 823; Galveston Co. v. Noelke, 125 S. W. 969.)
The jury should know upon what basis of facts the opinion is founded. (Wetherbee Heirs v. Wetherbee, 38 Vt. 454; Williams v. Brown, 28 Ohio St. 547.)
The opinion must not be based on information gained from the statements of others obtained out of court, for such an opinion would be based upon mere hearsay. {Polk v. State, 36 Ark. 117; Lawson, Expert and Opinion Evidence, p. 266; Heald v. Thing, 45 Me. 392; State v. Pike, 65 Me. Ill; Flaherty v. Powers, 167 Mass. 61.)
When plaintiff consents to an act he cannot subsequently treat it as a trespass, nor recover damages therefor. {Cadwell v. Farrell, 28 111. 438; Ashcroft v. Cox, 50 S. W. 986; Law v. Nettles, 2 Bailey L. 447; Brown v. Armstrong, 102 N.W. 1047; Vanneatv. Fleming, 44 N.W. 906; 28 Am. & Eng. Ency. Law, p. 560; Churchill v. Bauman, 95 Cal. 541, 104 Cal. 369.)
When a landowner permits an appropriator of water for a number of years to enter upon his land for the purpose of constructing a dam, he will be estopped by such acquiescence from thereafter treating the appropriator as a trespasser and denying his right of entry. {Miller v. Douglas, 60 Pac. 722.)
When a dam is acquiesced in for years, the prescriptive right to keep the water out of the stream below is as much entitled to protection as the right to object to it backing up above. (Burk v. Simonson, 104 Ind. 173; Brown v. Armstrong, 102 N. W. 1047.)
A parol license to construct or maintain a dam on the licensor’s land is valid and cannot be revoked after licensee has made valuable improvements on the faith of the license. (Garrett v. Bishop, 41 Pac. 10; Bowman v. Bowman, 57 Pac. 547; Lee v. McLeod, 12 Nev. 280; Snoivden v. Wilas, 19 Ind. 10; Curtis v. LaGrande W. Co., 23 Pac. 809; McBroom v. Thompson, 37 Pac. 57; Sumpter Ry. Co. v. Gardner, 90 Pac. 499; Flickinger v. Shaw, 87 Cal. 126; Grimshaw v. Belcher, 88 Cal. 217.)
A person operating under a parol license is not liable for damages done in pursuance thereof. (Grimshaw v. Belcher, 88 Cal. 217; Boíles v. Mercer, 53 Cal. 667; 2 Farnham on Waters, sec. 557; Ogle v. Did, 55 Ind. 130; Cobb v. Slimmer, 45 Mich. 178, 7 N. W. 806; Cook v. Pridgen, 45 Ga. 331, 12 Am. Rep. 582.)
Where a person acquires land on which a dam is constructed and upon which there is an easement- in favor of other land of the grantor, a conveyance of the land does not destroy the easement. (2 Farnham on Waters, sec. 555a.)
Where a person has delayed to object to a trespass or nuisance, he cannot obtain equitable relief. (2 Farnham on Waters, sec. 582c; Heilman v. Lebanon Co., 34 Atl. 647; Clarke v. Cambridge Irr. Co., 64 N. W. 239; Kinkaid v. Indianapolis Co., 24 N. E. 1066; Penn Co. v. Austin, 168 U. S. 685; Keeling v. Pittsburg Co., 54 Atl. 485; McAulay v. West Co., 33 Vt. 311; Holt v. Parsons, 45 S. E. 690; Goodin v. Cincinnati Co., 18 Ohio St. 169; Pensacola R. Co. v. Jackson, 21 Fla. 146.)
Where a public use has attached to water, a party will not be entitled to the equitable relief of an injunction where he has stood by and permitted the public right to attach. (Fresno Co. v. Southern Pacific, 135 Cal. 202; Southern Cal. Ry. Co. v. Slauson, 138 Cal. 342; Katz v. Walkinshaiv, 141 Cal. 116, 136; Crescent Canal Co. v. Montgomery, 143 Cal. 248; Montecito Valley Co. v. Santa Barbara, 144 Cal. 578; Newport v. Temescal W. Co., 149 Cal. 531; Barton v. Water Co., 155 Cal. 509.)
Where an easement over land is enjoyed for the period of five years openly, notoriously, uninterruptedly and continuously under a claim of right and adversely to the owner of the land, a prescriptive right to maintain it without liability for damages is acquired. (Anthony v. Kennard Bldg. Co., 87 S. W. 921; Branch v. Doane, 17 Conn. 402, 409; Ellington v. Bennett, 59 Ga. 286; Cowell v. Thayer, 5 Mete. 253; Virginia Hot Springs Co. v. McCrae, 106 Ya. 461; 10 Am. & Eng. Ann. Cases, 179; Voter v. Hobbs, 69 Me. 19; Ray v. Fleteher, 12 Cush. 200; Jackson v. Harrington, 2 Allen, 242; Qehman v. Erdman, 105 Pa. St. 371; McGeorge v. Hoffman, 135 Pa. St. 381, 19 Atl. 413; Lucas v. Marine, 40 Ind. 289; Grigsby v. Clear Lake W. Co., 40 Cal. 396; Gulf Co. v. Moseley, 161 Fed. 72, 20 L.' R. A. n. s. 885; Turner v. Overton, 86 Ark. 406, 111 S. W. 270, 20 L. R. A. n. s. 894; Robinson v. Southern C. R. Co., 129 Cal. 8; Williams v. Southern Pac. R. R. Co., 150 Cal. 624.)
If the acts of plaintiff contributed to cause the injury complained of, defendant is not liable for the trespass. (Richards v. Peter, 38 N. W. 278; Emery v. Railroad, 109 N. C. 589; Grant v. Kugler, 81 Ga. 637, 12 Am. St. Rep. 348; Turner v. Overton, 86 Ark. 406, 111 S. W. 270; 20 L. R. A. n. s. 894; Proctor v. Jennings, 6 Nev. 83.)
The injunction should merely have regulated the height of the dam. The act prohibited must be the doing of some tangible or distinct thing or series of things, to be clearly pointed out or described. (Lawrie v. Lawrie, 9 Paige, 233; St. Louis Co. v. Montana M. Co., 58 Fed. 129; Regan v. Sorensen, 100 N. W. 1095; Governor v. Wiley, 14 Ala. 172; Baldwin v. Miles, 58 Conn. 496, 20 Atl. 618; Moat v. Holbein, 2 Edw. Ch. N. Y. 188; Sullivan v. Judah, 4 Paige, 444; Arthur v. Oakes, 63 Fed. 310, 327.)
Where a person is engaged in a lawful business, it is not proper in any case to absolutely enjoin and abate the same, but it should be regulated or abated merely to the extent which is necessary to prevent damage. (Shepard v. People, 40 Mich. 487; Byers v. Colonial Irr. Co., 134 Cal. 553; Fresno v. Fresno Canal Co., 98 Cal. 179; McMenomy v. Band, 87 Cal. 134; Lorenz v. Waldron, 96 Cal. 243, 249.)
The complaint must allege that the dam is a nuisance. (Androscoggin R. Co. v. Androscoggin R. Co., 49 Me. 392.) It must also allege the height of the dam claimed to be a nuisance. (Tye v. Catching, 78 Ky. 463; 14 Ency. PI. & Pr., p. 1148.)
The lower court erred in setting aside the judgment entered upon the verdict. By that judgment the power of the court was exhausted, and' it had no power to enter another and different judgment. (Ophir M. Co. v. Carpenter, 4 Nev. 534; Castle v. Smith, 36 Pac. 859; Rule XLV, District Court; Bliss v. Grayson, 24 Nev. 422.)
Before a court can abate a dam, all parties interested must be made parties to the action. (Castle v. Madison, 89 N. W. 156; Eastman v. St. Anthony Falls Go., 12 Minn. 137; O’Sullivan v. New York E. R. Co., 7 N. Y. Supp. 51; Martin v. Blattmer, 68 Iowa, 286; Brady v. Weeks, 3 Barb. 157; Irvine v. Wood, 51 N. Y. 224; Taylor v. Metropolitan E. R. Co., 50 N. Y. Sup. Ct. 311; Bliss v. Grayson, 24 Nev. 422; Robinson v. Kind, 23 Nev. 330.)
The court should have permitted defendants to file supplemental answers setting up the alleged settlement with other parties. It is well settled that the release of one joint tort-feasor releases all of the persons liable. (24 Am. & Eng. Ency. Law, p. 306; Chetwood v. California Nat. Bank, 113 Cal. 414, 426.)
The memorandum of costs, not having been filed within the statutory time, should have been stricken out. (Howard v. Richards, 2 Nev. 128; Sholes v. Stead, 2 Nev. 107.)
The court erred in admitting evidence of witnesses as to amount of damages suffered by plaintiff, and in permitting witnesses to give their opinions as to the value of land based on productiveness. Damages cannot be proved by asking a witness how much a thing is or was damaged. (Upcher v. Overlender, 50 Kan. 315, 31 Pac. 1080; Howell v. Medler, 41 Mich. 641, 2 N. W. 911; International R. Co. v. Fickey, 125 S. W. 327; Brown v. Providence Ry. Co., 12 R. I. 238; Tingley v. Providence, 8 R. I. 493; Louisville Ry. Co. v. Sparks, 40 N. E. 546; Van Deusen v. Young, 29 N. Y. 20; Tenn. Coal Co. v. McMillan, 49 South. 880; Lawson, Expert Evidence, 491; Greenleaf, Evidence, sec. 430; Central of Georgia v. Barnett, 44 South. 392.)
If the witnesses are qualified, they may give their opinions as to the value before and after the event causing the damage. (Roberts v. N. Y. El. Ry. Co., 128 N. Y. 455, 28 N. E. 486; Louisville Ry. Co. v. Sparks, supra; 2 Sutherland on Damages, sec. 444.)
Evidence of value should be confined to what the property is worth in the open market, having regard to the most valuable use to which it may be put. (Santa Ana v. Harlin, 99 Cal. 538; Spring Valley Co. v. Drink-house, 92 Cal. 528.)
The court erred in overruling challenges to jurors. The constitution of Nevada secures to every one the right of trial by jury. The term “jury” means .twelve men who are not interested in the event of the suit. (State v. McClear, 11 Nev. 39.) To be competent they should stand indifferent. (Fleeson v. Savage S. M. Co., 3 Nev. 157, 161.) General hostility between a juror and a party, without any connection with the action to be tried, is a good 'cause of challenge. (Brittain v. Allen, 13 N. C. 120; 24 Cyc. 287; Fleming v. State, 11 Ind. 235; Commonwealth v. Mosier, 19 Atl. 943; Mining Co. v. Showers, 6 Nev. 291; Lombardi v. Cal. S. R. Co., 124 Cal. 31; Omaha S. R. Co. v. Craig, 58 N. W. 209.)
Temporary interruption by plaintiff of the enjoyment of an easement by defendant, and without defendant’s knowledge, is not sufficient to stop the running of the statute and the acquisition of a prescriptive right, or to take away a prescriptive right already acquired. (.McKenzie v. Elliott, 134 111. 156, 24 N. E. 965; Webster v. Loioell, 142 Mass. 324; Putnam v. Bowker, 11 Cush. 542; Connor v. Sullivan, 40 Conn. 26, 16 Am. Rep. 10; Wilkens v. Barnes, 1 Ky. L. Rep. 328.)
Where a finding of fact is defective, and it has been excepted to in the court below, the supreme court will reverse the case for such defect. (Whitmore v. Shiverick, 3 Nev. 288.)
The owner of the servient estate can have a right of action only where there is an unauthorized use of the easement, or where the owner of the easement exceeds his right in the manner or to the extent of its use. (14 Cyc. 1215.)
It is a physical impossibility for a dam to cause an overflow at points up stream from four to eleven feet higher than the bank of the river at the dam, as in this case. (Lowery v. San Joaquin Co., 134 Cal. 185.)
Testimony that is contrary to the known and settled laws of nature will be rejected by the court, and does not need any contradiction. (Daggers v. Van Dyck, 37 N. J. Eq. 130, 132; Moore on Facts, vol. 1, sec. 149; Tillson v. Maine C. R. Co., 67 Atl. 407; Waters-Pierce Oil Co. v. Knisel, 96 S. W. 342.)
Plaintiffs cannot recover where their own acts and negligence contributed to the injury. (Malmstrom v. People’s Drain Ditch Co., 32 Nev. 246.)
Mack & Green, for Respondent:
The complaint is clearly sufficient. (Begein v. Anderson, 28 Ind. 79; Adams v. Michael, 38 Md. 123,17 Am. Rep. 516; Dunn v. Austin, 77 Tex. 139, 11 S. W. 1125; Bowen v. Mauzy, 117 Ind. 258, 19 N. E. 526; Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218, 74 Am. St. Rep. 600; Ency. PI. & Pr. 1109,1141; 29 Cyc. 1241-1242; Laflin Rand Power Co., 131 111. 322, 23 N. E. 389; Sullivan v. Waterman, 20 R. I. 134.)
There is in this state but one form of action; technical distinctions between forms of action as they existed at common law have been abolished. (Comp. Laws, 3996; Jones v. Steamboat, 17 Cal. 487; Rogers v. Duhart, 97 Cal. 500; Fralerv. Sears Union Water Co., 12 Cal. 555.)
The complaint in actions under our code shall contain a statement of the facts constituting the cause of action, in ordinary and concise language. (Comp. Laws, 3134; Pomeroy, Code Remedies, 4th ed. sec. 49, p. 75.)
In the selection of a jury, the determination of the trial court as to the existence or nonexistence of a general feeling against the defendants is final and conclusive. (Bernou v. Bernou, 114 Pac. 1000; Galveston v. Nicholson, 57 S. W. 693; Barfield v. Coker, 53 S. E. 170; Thompson v. Autry, 57 S. W. 47; Mo. K. & T. Ry. Co. v.Elliott, 102 Fed. 96, 42 C. C. A. 188; Creditors v. Welch, 55 Cal. 469; People v. Findley, 64 Pac. 472, 132 Cal. 301; Clausen v. State, 36 Atl. 886; Huntley v. Territory, 54 Pac. 314; 3 Cyc. 333; Estes v. Richardson, 6 Nev. 128.)
A juror is not incompetent because he has a suit pending against the same defendants growing out of an entirely different subject-matter. {San Antonio v. Diaz, 64 S. W. 549; Southern Railway Co. v. Oliver, 102 Va. 710, 47 S. E. 862.)
A juror is not incompetent because he formerly had a similar suit against the same defendants, or is defendant in a similar suit brought by the same plaintiff. {Missouri Ry. Co. v. Elliott, 51 S.W. 1067; Austin v. Cox, 60 Ga. 520.)
Even a relationship to a witness does not disqualify a juror, much less a mere acquaintance with the witness. {Faith v. City of Atlanta, 78 Ga. 779, 4 Atl. 3; Stewart v. Ry. Co., 136 Ky. 717, 125 S. W. 154.)
A mere hypothetical opinion based upon ' hearsay information and not raised by witnesses does not disqualify a talesman. {People v. Murphy, 45 Cal. 137; People v. Williams, 17 Cal. 142; State v. Williams, 28 Nev. 395.)
Where the dam of a lower proprietor causes the deposit of sand, sediment, and debris in a stream, resulting in the overflow of the lands of an upper proprietor, the former is liable for any resulting damage. {Hagge v. Kansas City S. R. Co., 104 Fed. .391; Turner v. Lacy, 37 Or. 158, 67 Pac. 342; Athens Mfg. Co. v. Rucker, 80 Ga. 291, 3 S. E. 885; Schuylkill N. Co. v. McDonough, 33 Pac. 73; Blizzard v. Danville, 34 Atl. 846; Ames v. Dorset M. Co., 64 Vt. 10, 23 Atl. 857; Talbot v. Whipple, 7 Gray, 122; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334; Cowels v. Kidder, 24 N. H. 364, 54 Am. Dec. 287; Cline v. Baker, 118 N. C. 780, 24 S. E. 516; Hardin v. Ledbetter, 103 N. C. 90, 9 S. E. 641; Farnham on Waters, vol. 2, sec. 567, p. 1820; sec. 570, pp. 1832, 1833.)
Both at common law and in the United States a natural stream cannot be disturbed by a lower proprietor to the detriment of those above him. (Kroeger v. Twin Buttes, 114 Pac. 553; Herriman v. Finan, 133 N. Y. Supp. 1034; Colket v. Verner, 84 Atl. 775, 236 Pa. 285.)
The construction of a solid dam in the river evinced a wanton disregard of the upper proprietor’s rights, and imposed liability upon the defendants. (-Jones v. Fisher, 17 Can. S. C. 513; Ramsale v. Foote, 55 Wis. 557,13 N. W. 557; Hass v. Choussard, 17 Tex. 588; Masonic T. Assn. v. Banks, 94 Va. 695, 27 S. E. 490; Wilhelm v. Burley son, 106 N. C. 381, 11 S. E. 590; Moffett v. Brewer, 1 Greene, 349; Delaney v. Boston, 2 Harr. 489; Morris v. Commander, 25 N. C. 510; Miller v. Sloiuman,.2Q Ind. 143; Coloney v. Farrow, 91 Hun, 82, 36 N. Y. S. 164; Winchell v. Clark, 68 Mich. 64, 35 N. W. 907; Boatner v. Henderson, 5 Mart. 186; Hill v. Ward, 7 111. 285; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406; Little v. Slamtack, 63 N. C. 285; Thompson v. Crocker, 9 Pick. 59; Sims v. Smith, 7 Cal. 149, 68 Am. Dec. 233; note to 59 L. R. A. 817 and 28 L. R. A. n. s. 156.)
Even if the erection and maintenance of the dam in question was a lawful act or business, it constitutes no excuse for a nuisance that causes injury to another. (21 Am. &' Eng. Ency. Law, 2d ed. 689; Scott v. Day, 3 Md. 431; Railroad v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Friedman v. Columbia M. Works, 91 N. Y. S. 129; Barrick v. Schifferdecker, 1N. Y. S. 21; Catlin v. Patterson, 10 N. Y. St. 724; Mulligan v. Elias, 12 Ab. Pr. n. s. 259; Barkau v. Knecht, 9 Ohio Dec. 66; Rodenhausen v. Craven, 141 Pa. St. 546, 23 Atl. 774; Ducktown S. Co. v. Barnes, 60 S. W. 593; Nevill v. Mitchell, 66 S. W. 579; People v. Burtleson, 47 Pac. 817; Jung B. Co. v. Commonwealth, 96 S. W. 595; Attorney-General v. Stewart, 20 N. J. Eq. 415; Cleveland v. Citizen’s G. Co., 20 N. J. Eq. 201; Rilley v. Curley, 75 N. J. Eq. 57,'71 Atl. 700; Lumber Co. v. Sharp, 123 S. W. 370.)
The creation and maintenance of a nuisance is an actionable wrong, and therefore unlawful. (Comp. Laws, 3346; Stats. 1901, 39.)
One who wrongfully causes water to flow upon another’s land, which would not flow there naturally, creates a nuisance. (29 Cyc. 1178; Oil Co. v. Jackson, 91 N. E. 825; Andette v. Ó’Cain, 39 Kan. 103.)
Whether the maintenance of the dam was a nuisance was a question of fact for the jury and the trial court, and their determination is conclusive. (21 Am. & Eng. Ency. Law, 619.)
No notice that the dam constituted a nuisance was necessary to charge defendants with liability. (29 Cyc. 1233.)
They had actual knowledge of the existence of the dam and of the insufficiency of the river to carry the waters, which rendered notice unnecessary. (Farnham on Waters, sec. 566.)
A person obstructing a watercourse is liable for damage caused by extraordinary floods, where such or similar floods have occurred in the past, although at irregular and uncertain periods. (Ohio Ry. Co. v. Ramey, 139 111. 9; Union Trust Co. v. Cuppy, 26 Kan. 754; Atchison Ry. Co. v’. Herman, 74 Kan. 77, 85 Pac. 817; Gray v. Harris, 107 Mass. 492; New York v. Bailey, 2 Denio, 433; Graham v. Chicago I. & L. Co., 39 Ind. App. 294, 77 N. E. 57, 1055; Howard v. Buffalo, 122 N. Y. Supp. 1095.)
Liability for a nuisance exists regardless of negligence of the parties creating it. (29 Cyc. 1155; Athens M. Co. v. Rucker, 80 Ga. -291, 4 S. E. 885; Curtiss v. Eastern R. R. Co., 98 Mass. 428; Wilson v. Neto Bed-ford, 108 Mass. 261; Eason v. Wattier, 25 Or. 7, 34 Pac. 756; Texas Ry. Co. v. O’Mahoney, 60 S. W. 902; Pikley v. Clark, 35 N. Y. 520; Cahill v. Eastman, 18 Minn. 324; Kanakee W. Co. v. Reeves, 45 111. App. 285; Filler v. Chicopee M. Co., 16 Gray, 46; Schoot v. Longioell, 138 Mich. 12.)
The question of negligence is not involved in an action for the erection and maintenance of a nuisance. (29 Cyc. 1155; Risher v. Coal Co., 124 N. W. 764; Marble Co. v. Gas Co., 128 Mo. App. 96, 106 S. W. 94; Cahill v. Eastman, 10 Am. Rep. 184.)
Direct injury and liability exist, regardless of negligence. (Wine v. N. P. Ry. Co., 136 Pac. 387.)
An action for obstructing the flow of water by raising the height of a dam on the stream below is not a suit for negligence, but for wrongful acts, and the doctrine of contributory negligence does not apply. (Williamson v. Tingling, 80 Ind. 379; Athens M. Co. v. Rucker, 80 Ga. 291, 4 S. E. 885.)
It was the duty of defendants to maintain the dam at such a height only as would not cause the river to overflow, even though the dam might have been originally constructed at a greater height. (Missouri, K. & T. Ry. Co. v. Johnson, 126 Pac. 567; Saenger v. Harris, 120 Pac. 1117; Patajanueni v. Washington Power Co., 124 Pac. 783.)
Defendants acquired no prescriptive right to overflow plaintiff’s lands by the erection of a dam that did not overflow them. The prescriptive period commenced to run only when the lands were first overflowed. The overflow constituted the wrongful trespass, and not the erection of the dam. (Iowa Power Co. v. Hoover, 147 N. W. 858; Shearer v. Hutterische, 134 S. W. 63; Boynton v. Longley, 19 Nev. 69; Ellington v. Bennett, 59 Ga. 286; Postlethwaite v. Payne, 8 Ind. 104; Whitehair v. Broion, 80 Kan. 297; Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243; Miller v. Belleville Bank, 148 Mich. 339, 111 N. W. 1062; Griffin v. Bartlett, 55 N. H. 119; Morris v. Commander, 25 N. C. 510; Lynch v. Troxell, 207 Pa. St. 162, 56 Atl. 413; Sabin v. Johnson, 35 Wis. 185; King v. U. S., 59 Fed. 9.)
By claiming a prescriptive right, appellants adopt as their own all of the acts of their codefendants and predecessors. (Wills v. Babb, 222 111. 95, 78 N. E. 42.)
A party claiming a prescriptive right who enlarges the use cannot at the end of the period of limitations claim the use as enlarged and extended. (Boynton v. Longley, 19 Nev. 76.)
Plaintiff was not required to commence action to abate the nuisance or to recover damages until the dam became a nuisance and injury ensued. (Gorman v. Trice, 79 Ga. 731, 5 S. E. 129; Sumner v. Tilston, 7 Pick. 198; Ohio & M. R. Co. v. Nuerzel, 43 111. App. 108; Ward v. Ward, 22 N. J. L. 699; Russell v. Turner, 59 Me. 256; Gleason v. Tuttle, 46 Me. 288; Economy L. & P. Co. v. Cutting, 49 111. App. 422; Wilson v. Wilson, 2 Vt. 68.)
Appellants were liable for damage and subject to injunction, even though the dam was constructed and maintained under state or federal authority. (Sheffield Car. Co. v. Constantine H. Co., 137 N. W. 305; Van Wie v. Southern W. P. Co., 134 N. W. 828.)
There was no error in admitting the testimony of witnesses offered to connect facts with cause and effect. They were competent as experts, and the subject was one concerning which expert testimony might be given. (Congress Spring Co. v. Edgar, 99 U. S. 645; McLeod v. Lee, 17 Nev. 122; Grigsby v. Clear Lake W. Co., 40 Cal. 404; Bell v. Hardesty, 16 Pac. 80; Ohio & M. Ry. Co. v. Webb, 32 N. E. 527; St. L. Ry. v. Lyman, 22 S. W. 170; 2 Ency. of Ev., p. 952.)
The court, in considering the sufficiency of the evidence to support findings by the court or verdict by the jury, will take the part of the evidence which most strongly bears for the successful party. (Little v. Gorman, 114 Pac. 321; Hills v. Edmund Peycke, 110 Pac. 1088; 3 Cent. Dig., secs. 3762-3897; 2 Dec. Dig., secs. 931-989.)
Actual observation of witnesses having practical experience has often been held entitled to greater weight than opinions based upon levels and measurements, and deposit of sand and dead water has frequently been held to interrupt the current of a stream far above the theoretical level. (Hand v. CataivbaP. Co., 144 Mich. 370, 115 Am. St. Rep. 453; Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243; Mill Co. v. Green, 58 Iowa, 86, 12 N. W. 128; Broion v. Bush, 45 Pa. St. 61; Merriman’s Hydraulics, 1906, p. 325.)
Plaintiff had no cause for action for the abatement of the dam until the dam became a nuisance. (Eastman v. Poiver Co., 12 Minn. 137; Prentiss v. Wood, 132 Mass. 486; King v. U. S., 59 Fed. 9; Culver v. Chicago, 38 Mo. App. 365; Thornton v. Turner, 11 Minn. 336; Round-tree v. Brantley, 34 Ala. 544, 73 Am. Dec. 470; Chicago v. Andreesen, 62 Neb. 456, 87 N. W. 167; Union Trust Co. v. Cuppy, 26 Kan. 754; Delaware Co. v. Wright, 21 N. J. L. 469.)
An easement to overflow the lands of an upper proprietor may be acquired by prescription; but appellants never acquired an easement to overflow the lands of plaintiff, either by grant or prescription, and the jury and the trial court so found. (2 Farnham on Waters, sec. 551.)
The instructions correctly stated the law as applied to the facts of the case. The statute did. not begin to run against plaintiff’s cause of action until his lands were overflowed as a result of the dam. (Boynton v. Longley, 19 Nev. 76; Grigsby v. Clear Lake W. Co., 40 Cal. 396; Authurs v. Bryant, 22 Nev. 242; L. & W. Co. v. Hancock, 85 Cal. 226; Cave-Y. Crafts, 53 Cal. 135; Smith v. Russ, 84 Am. Dec. 739; Prentiss v. Wood, 132 Mass. 486; Culver v. Chicago Co., 38 Mo. App. 365; Thornton v. Turner, 11 Minn. 237; Hampstead v. Car-gill, 48 Mo. 558; Chicago v. Andree, 87 Mo. 167; Union Trust Co. v. Cuppy, 26 Kan. 754; Roundtree v. Brantley, 73 Am. Dec. 470; King v. U. S., 59 Fed. 9; Farnham on Waters, sec. 586; Shumway v. Simons, 1 Vt. 53; Gilford v. W. Lake Co., 52 N. H. 262; Ohio & M. R. Co. v. Wackier, 23 111. App. 415; Jones v. U. S., 48 Wis. 385, 4 N. W. 519; Turner v. Hart, 15 Am. St. Rep. 243; Brown v. Bush, 45 Pa. St. 61.)
Respondent was entitled to the injunction granted by the trial court. (Harriman v. Finen, 133 N. Y. Supp. 1034; Sheffield Car Co. v. Constantine H. Co., 137 N. W. 305; Taylor v. Rudy, 137 S. W. 574; Bramley v. Jordon, 133 N. W. 706; Shearer v. Hutterische Geneinde, 134 N. W. 63.)
An inj unction is sufficiently definite if it is possible for those enjoined to ascertain the acts enjoined. (Sullivan v. Judah, 4 Paige Ch. 444; Ballantine v. Webb, 47 N. W. 485; Robinson v. Clapp, 65 Conn. 365, 29 L. R. A. 582; 22 Cyc. 958; Oehler v. Levy, 234 111. 595, 85 N. E. 271; Sprague v. Kanes F. E. Co., 144 N. Y. Supp. 152; Stiles v. Hooker, 7 Cow. 266; Marcly v. Slvalts, 29 N. Y. 346.)
There could be no appeal from the judgment, because it was not taken within one year. (Comp. Laws, 3425; Solomon v. Fuller, 13 Nev. 276.)
Time cannot be extended by order of court or stipulation of parties; and after expiration of the time limited by statute, the court loses jurisdiction of the cause. {Brown v. Green, 65 Cal. 221; Williams v. Long, 130 Cal. 58; McDonald v. Lee, 132 Cal. 252; Spelling, New Trials, sec. 543; Hayne, New Trials and Appeals, sec. 204; 2 Cyc. 799-800.)
A party cannot appeal from an order or decision when the order or decision is correct, so far as his interests are concerned. {Daniel v. Daniel, 39 Ark. 266; Porter v. Singleton, 28 Ark. 483; Scotland v. East Branch M. Co., 56 Cal. 625; Hudson v. Hudson, 84 Ga. 611, 10 S. E. 1098; Chicago v. Cameron, 120 111. 447, 11 N. E. 899; Simms v. Lloyd, 58 Md. 477; Hoops v. McNichols, 38 Neb. 76, 57 N. W. 721; Hyatt v. Dusenbury, 106 N. Y. 663, 12 N. E. 711; Bullard v. Kenyon, 78 Hun, 26, 29 N. Y. Supp. 772; Lyon v. Allison, 1 Watt, 161; Dauntless Mfg. Co. v. Davis, 22 S. C. 584; Cunningham v. Smithon, 12 Leigh, 32.)
The findings are within the issues of the case, and no exception to the want of findings was filed in court within five days after the making of the finding or decision. (Comp. Laws, 3858.)
The appellate court will not disturb a verdict or judgment where there is a substantial conflict of the evidence, or where it is supported by material evidence. (Tonopah L. Co. v. Riley, 30 Nev. 322; Wiggins v. Pretiere, 105 Pac. 1024; Murray v. Osborne, 111 Pac. 31; Ratuhide B. F. M. Co. v. Rawhide C. M. Co., Ill Pac. 30; Cent. Dig., Appeal and Error, secs. 3983-3989; 2 Dec. Dig., sec. 1011.)
That the defendants sued were not the only guilty parties, was no reason for the refusal to enjoin those before the court. (Sammons v. Gloversville, 70 N. Y. S. 284; Parker v. Woolen Co., 195 Mass. 591, 81 N. E. 468, 10 L. R. A. n. s. 584; Corey v. Havener, 182 Mass. 250, 65 N. E. 69; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 419; People v. Gold Run D. Co., 66 Cal. 138, 4 Pac. 1152; Oulihan v. Butler, 189 Mass. 288, 75 N. E. 726.)
A judgment rendered against several codefendants, though invalid for want of jurisdiction over them, is not void and cannot be impeached collaterally by defendants as to whom the court had jurisdiction. (Jasper v. Mickey, 4 S. W. 424; Holton v. Loiuner, 81 Mo. 360; Bailey v. McGinnis, 57 Mo. 362.)
Samuel W. Belford, as Amicus Curiae:
Where public improvements or works have been authorized by law and do not encroach directly upon private property, they cannot be treated and proceeded against as nuisances, nor will their existence be a good ground for recovery of damages as for a nuisance, except upon allegation and proof of negligence in their construction or operation. Where the alleged nuisance is the result of the development by the owner of his own land in the production and utilization of its natural resources, the charge can be sustained only when it is shown that the owner has failed to exercise due care to so conduct his business as to avoid the injurious results complained of. {Brown v. Humphrey, 109 N. W. 714-717; Hauck v. Pipe Une Co., 26 Atl. 644; Vogt v. City, 110 N. W. 608.)
The general rule governing the issuance of injunctions is applicable to private nuisances, and they will not be enjoined where there is a remedy of compensation for injuries. {Randall v. Freed, 97 Pac. 669; Wood on Nuisances, 3d ed. p. 1150; Zimmerman v. Gretzmacher, 98 Pac. 875.)
What the legislature declares to be lawful cannot be a nuisance unless through negligence and want of care. {Randall v. Jacksonville St. Ry. Co., 19 Fed. 409; State v. L. & N. Ry. Co., 86 Ind. 114; Chope v. Detroit Co., 37 Mich. 195; Gray v. Patterson, 60 N. J. Eq. 385; Crofford v. Alabama Ry. Co., 48 South. 366; Southern Ry. Co. v. Albes, 45 South. 234-238; Simonds v. Telephone Co., 72 Atl. 175; Farrell v. Old Town, 69 Me. 72; Winship v. Enfeld, 42 N. H. 197; Thompson v. Dodge, 60 N. W. 545; Steiner v. Phila. Tract Co., 19 Atl. 491; A. T. & S. F. R. R. Co. v. Armstrong, 80 Pac. 978; Meyer v. V. & T. Ry. Co., 16 Nev. 341; Longabaugh v. V. & T. Ry. Co., 9 Nev. 271; Walsh v. V. & T. Ry. Co., 8 Nev. 110; Trans. Co. v. Chicago, 99 U. S. 635.)
By the Court,
Coleman, J.:
This is a suit instituted by respondent against appellants to recover judgment for alleged damages in the sum of $48,450, and to obtain a decree of the court abating a certain dani in Walker River, known as the Spragg, Alcorn & Bewley dam, which, it is claimed, is responsible for the overflow of the Walker River, and the consequent damages. From a judgment in favor of plaintiff in the sum of $25,475 damages and a decree directing defendants to reduce the height of the dam, and from an order denying the motion for a new trial, this appeal is taken.
The plaintiff was, at the time the suit was instituted, and for a number of years theretofore, the owner of a ranch of 940 acres, through which the Walker River flows for a distance' of over two and a half miles. Defendants own ranches on the river below the.ranch of plaintiff. Between the years 1871 and 1873, one Mason, the then owner of the land upon which the dam is situated, and which is now owned by the plaintiff, erected, in conjunction with others, at and upon the extreme' lower end of what is now plaintiff's ranch, the Spragg, Alcorn & Bewley dam, for the purpose of diverting the water from the river into a ditch for irrigation purposes. Almost a mile above the Spragg, Alcorn & Bewley dam there was erected in 1873 a dam known as the Merritt dam, to be used for the same purpose, which, though washed out in 1883, was rebuilt. Some distance above the Merritt dam, possibly from one-third to one-half mile, is the Perazzo ditch, which takes water from the river, and which, with the consent of plaintiff, was constructed in 1903. There are several other ditches, either on or just above the McLeod ranch, which take water from the river for irrigation. It also appears that the river, as it flowed through the ranch of plaintiff, was very crooked, and the plaintiff made several cuts for the purpose of straightening it. These cuts were through sandy soil, and, as a rule, were only about two feet wide; it being left to the river to wash out so much more of the soil as was necessary to carry the waters of the stream. The upper point of overflow, which is alleged to have caused considerable damage, was over two miles up the river from the Spragg, Alcorn & Bewley dam. The fall in the river is about 1 foot to the 1,000, which would make the bed of the river at the Spragg, Alcorn & Bewley dam about ten and one-half feet lower than at the upper point of overflow. Overflows from the river and upon plaintiff's land took place in the years 1862, 1868, 1876, 1881, 1884, 1886, 1890, 1902, 1903, 1904, 1905, 1906, and 1907. This suit is to recover for the damage alleged to have been caused by the overflows in the years 1904, 1905, 1906, and 1907. It is urged by the appellants that the case should be reversed for the reason that it appears from the evidence that it was physically impossible for the Spragg, Alcorn & Bewley dam to have so affected the flow of the stream as to have caused the deposit of the silt, which was carried in suspension in the stream, as far up the river as the points of overflow. It is their theory that the dam would not affect the current of the river for a much greater distance than at the point where a horizontal line drawn from the crest of the water at the dam intersects the bed of the river. In other words, it is contended that, since the river has a fall of 1 foot to the 1,000, a dam one foot high would affect the flow of the river only for a little more than 1,000 feet up the river from the dam, a dam two feet high would affect the flow only a little over 2,000 feet up the river from the dam, and so on; and since the Spragg, Alcorn & Bewley dam, prior to 1903, was never more than four feet high, and at no subsequent time over five feet high, the flow of the stream could by no possibility be influenced above the Merritt dam. This theory not only appeals to the mind of the layman, but the appellants called several engineers, all of whom testified that the deposit of silt could not be affected to any appreciable distance above the point of intersection mentioned.
Prof. Thurtell, formerly of the University of Nevada, and some time state engineer, and now chairman of the Fourth Section Board under the Interstate Commerce Commission, after making a survey of the stream, testified that the deposit of silt would not be affected more than 200 feet above said point of intersection.
Mr. Hammond, the expert called in behalf of plaintiff, testified:
"Q. Now, then, assuming that the Spragg, Alcorn & Bewley dam is six feet in height, I am speaking now of the original bed of the river, where would that line, if drawn up the river, meet the original bed of the river? A. Six feet?
"Q. Six feet in height? A. Six feet in height. Six thousand feet.
"Q. Assuming that the dam was seven feet in height, how high up would it strike the bed of the river? A. Seven thousand feet, theoretically.
"Q. If the dam was seven and a half feet in height, how high up would it strike the bed of the river? A. Seven thousand five hundred feet."
In opposition to the testimony of defendant's engineers, and the testimony of Mr. Hammond, just quoted, is the testimony of several ranchers who had lived in the community for a number of years. Witness Rallins testified, over the objection and exception of defendants:
"Q. Do you know how the water' of the river came to overflow on those places along the ranch as you describe it? A. I do.
"Q. What was the cause of the overflow on the McLeod place? A. By building up the dam, causing sand and sediment in the river, and causing the river to overflow its banks.
"Q. What dam do you refer to? A.'The Spragg, Alcorn & Bewley dam."
The witness Martin testified, over the objection and exception of defendants:
"Q. What was the cause of the damage to. the land? A. Well, the cause ivas, the river bed was full of sand, and the water had to flow out some place.
"Q. Do you know the cause of the filling of the river with sand? A. Yes.
"Q. Now, what was the cause? A. Well, from my experience on the river, I know that dams cause the sand to form in the river.
"Q. Now, as to the place, the particular place known as the McLeod place, what particular dam do you have reference to as having caused the deposit of sand? A. I have reference to the Spragg, Alcorn & Bewley dam."
The witness Nichol testified, over the objection and exception of defendants:
"Q. Do you know what caused the deposit of sand in the channel of the river above the Spragg, Alcorn & Bewley dam? A. Yes.
"Q. What was the cause of the deposit of sand in the channel of the river above the dam, and up as far as the ford at the McLeod house ? A. The dam, the Spragg, Alcorn & Bewley dam.
"Q. Do you know what caused the overflow. A. The river not having the capacity to carry the water.
"Q. Why didn't it have the capacity? A. The river filled up with sand.
Plaintiff testified, over objection and exception:
"A. Yes, I testified very fully in regard to the cause, I think.
"Q. You may state what caused that, if you know of your own knowledge. A. I could give you here a statement as my positive opinion.
"Q. Well, I don't want any opinion, I want to know what you know. A. Well, I had better not say, I might not know, but I do know that it was caused by this dam in the river, I am positive; I know that it was."
Other witnesses.testified to the same effect. It is this line of testimony which counsel for respondent, notwithstanding the admitted facts that the water which overflowed just above the Perazzo ditch went back into the main stream below the Merritt dam and above the Spragg, Alcorn & Bewley dam, and that there was no overflow between the Merritt and the Spragg, Alcorn & Bewley dams, think should be sufficient to establish their case by a preponderence of the evidence.
1. Counsel for plaintiff call our attention to the case of Hand v. Catawba Power Co., 90 S. C. 267, 73 S. E. 187, in support of their contention that testimony of the ranchers in the neighborhood of the McLeod ranch should outweigh the testimony of the experts called by defendants. While it is undoubtedly the general rule that witnesses must testify as to matters of fact, and leave the conclusion to be drawn by the jury, there'are certain exceptions to this rule; and, when it is impossible for the witness to detail all of the pertinent facts in such a manner as to enable the jury to form a conclusion, the witness may give his opinion. The facts in that case no doubt j ustified the ruling of the court.
"It is not proper to allow one who is not an expert to express an opinion in any case upon a question with relation to which all the facts may be placed before the jury; and to receive as evidence the opinion of a lay witness upon the precise issue submitted for trial in such case would permit the witness to usurp the province of the court or jury trying the cause." (Amer. T. & T. Co. v. Green, 164 Ind. 349, 73 N. E. 707.)
See, also, Loshbaugh v. Birdsell, 90 Ind. 466; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Balto. etc. Road v. Leonhardt, 66 Md. 70, 5 Atl. 346; Mann v. State, 23 Fla. 610, 3 South. 207; Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216; Shaw v. Jones, 133 Ga. 446, 66 S. E. 240.
2. The question, then, is: Were the facts and circumstances which entered into the forming of an opinion by the witnesses themselves as to what caused the overflows complained of capable of being detailed to the jury? If they were, the opinion of the various non-expert witnesses should have been excluded; if they were not, their admission and testimony by the court was not error. It appears from the evidence in this case, which took about five weeks to hear, that various witnesses detailed what transpired along the river as it flows through the property owned by the parties, from a very early day in the history of the valley. The various dams, ditches, cuts, overflows, etc., were minutely detailed to the jury. Besides, the jury were taken to, and personally viewed, the premises in question. Under the condition of the record, it appears to us that the objections to the opinions of the nonexpert witnesses should have been sustained.
In this connection, there is another fact worthy of consideration, and that is the relationship of the Merritt dam to the Spragg, Alcorn & Bewley dam, so far as the latter affected the deposit of silt above the Merritt dam. It must be borne in mind that the Merritt dam is nearly a mile further up the river from the Spragg, Alcorn & Bewley dam, and that it was put in for the purpose of diverting a portion of the water of the river into an irrigation ditch. The Merritt dam was partly washed out in 1883, but was rebuilt, and, so far as appears, remained in the river and was eventually covered with sand; the last seen of it, according to the testimony of plaintiff, being in 1904, while Waldo, one of his witnesses, testified that he saw it in 1906.
J. C. Mills, a witness for plaintiff, and an owner in the Merritt ditch since 1886, testified that when he first saw the ditch the bed of the river'was from a foot to a foot and a half below the level of the ditch, and that it was for this reason the dam was put in; that in 1886 the dam was on a level with the floor of the gates; that about that time the dam was practically covered with sand and has remained covered ever since-; that the sand kept increasing after 1886 until in 1900, when he assisted in putting in another headgate in the Merritt ditch; that in 1900 the bed of the river was three feet and one inch higher than it was in 1886; that in the fall of 1905 the river was filled with sand at the Merritt dam level across and only eighteen inches or less from the top of the banks; and that at the time of the trial there were three feet of sand on top of the rocks of the Merritt dam.
G. T. Feiganspan, a witness for the plaintiff, and an owner in the Merritt ditch, and its manager since 1880, testified that he first saw the Spragg, Alcorn & Bewley dam in 1890; that five or six years after 1883, he noticed that the Merritt dam was no longer in sight; that in his opinion the Spragg dam backed sand over the Merritt dam in 1885. Asked why he would say the Spragg dam covered the Merritt dam with sand in 1885, when he did not see the former dam until five years later, he replied, "That is the only thing I can lay it to."
Plaintiff testified that the Merritt dam raised the water two feet.
Now, is it not conclusive that the Merritt dam, under respondent's theory of the case contributed to the filling of the river ? The rebuilding of the Merritt dam in 1883 is a conclusive argument to the effect that at that time at least the backwater from the Spragg, Alcorn & Bewley dam did not reach up to that point, for, if it had, the effect of the backwater would have accomplished the very purpose for which the dam was rebuilt. Furthermore, if the Merritt dam was two feet high, and the fall of the river being 1 foot to the 1,000, and if the Spragg, Alcorn & Bewley dam was 4,000 feet further down the river from the Merritt dam, was it not a physical impossibility for the backwater to have reached the top of the Merritt dam unless the Spragg, Alcorn & Bewley dam was six feet high? Upon the same theory, if the Merritt dam was only one foot high, and the Spragg, Alcorn & Bewley dam 4,000 feet further downstream, it must have been five feet high to have caused the backwater from it to reach the top of the Merritt dam; and if the Merritt dam was six inches high, and the Spragg, Alcorn & Bewley dam 4,000 feet further down stream, it must have been four and a half feet high before the backwater from it could have become as high as the Merritt dam. If this is true, how could it be possible for the backwater from the Spragg, Alcorn & Bewley dam to affect the stream above the Merritt dam? In fact, counsel for respondent say in their brief:
"It is true that McCray, Thurtell, and Hammond testified a dam could not cause the deposit of sand above the point where the dam affected the current of the river. That is the statement of a proposition known to every one, which statement is a mere hypocrisy intended and calculated to mislead the jury and the court. The issue was as to how far the dam did affect the current of the river."
Counsel for respondent take the position that the contention of appellants is correct to the extent that backwater will not be affected much further up the stream than at the point where a horizontal line drawn from the crest of the water as it passes over a dam intersects the bed of the river, but contend that a different rule applies so far as the influence upon the deposit of sand is concerned. If we concede this contention to be correct as to the influence on the deposit of sand, we are yet unable to see how the backwater from a dam can possibly affect the deposit of sand above a dam which is further up the stream, when the backwater from the lower dam does not reach the top of the upper dam. If we take the correct view of the situation, it necessarily follows that the opinions of the nonexpert witnesses called by plaintiff, even if admissible, are of little or no value whatever. It is said:
"Courts'are not so deaf to the voice of nature, or so blind to the laws of physics, that every utterance of a witness in derogation of those laws will be treated as testimony of probative value simply because of its utterance." (1 Moore on Facts, sec. 160.)
Mr. Justice Marshall, in speaking for the Supreme Court of Wisconsin, in Groth v. Thomann, 110 Wis. at page 181, used the following language:
"When physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith. The fact established by the situation itself and rpatters of common knowledge, so clearly that no one can reasonably dispute it notwithstanding evidence to the contrary, must stand uncontroverted and uncontrovertible, condemning as false such contrary evidence, either upon the ground of mistake or something worse."
Just here it may not be out of place to say that, while Prof. Merriman, in his Treatise on Hydraulics (9th Ed.), at page 353, takes the position that while many attempts have been made to determine the precise distance that a dam will cause backwater, none can be said to have been successful. From the formulas which he gives we understand him to mean that because of the varying dimensions, fall, etc., of a stream, it is difficult to tell the exact point at which the backwater from a dam will affect the flow of a stream. We think there can be no doubt about that proposition; but the matter of a few hundred feet, more or less, makes no difference in this case. The question of approximating the distance with some considerable degree of exactness arises in cases where a dam causing backwater may affect a mill wheel located on the stream above the dam. It is clear, however from Mr. Merriman's work, that the point of backwater never varies greatly from the point where a horizontal line drawn from the crest of the dam will intersect the surface of the stream. But regardless of Prof. Merriman's view, it appears from the statement in the brief of counsel for respondent, and from the evidence of his expert, Mr. Hammond, that there is no substantial difference of opinion between the parties to the suit as to the distance at which the flow of water will be affected by a dam.
Taking respondent's view of the case, however, it is impossible to comprehend that the Merritt dam was not having the same effect in causing deposits of sand in the bed of the river above that dam that the Spragg dam was causing above it. Under counsel for respondent's theory, the Merritt dam .must have been causing a deposit of sand in the bed of the river above that dam for about fourteen years before the Spragg dam could possibly have had any effect upon the river above the Merritt ditch. According to respondent's theory, a deposit of sand is caused in the stream at the upper point of backwater., thus raising the bed of the river — in effect causing another damming at that point — which in turn checks the current still further up the stream, and this process continues indefinitely up the stream. If this theory is correct, a dam in a river carrying silt, when it once starts a deposit of silt, must operate as a continuing cause of deposit up the stream, except as such deposit may be overcome by scouring during certain stages of the river volume. Hence it follows that it is impossible, under respondent's theory, to say that the Merritt dam was not a contributing cause to respondent's injury. A fact that should be borne in mind in considering respondent's theory is that the height of a dam is immaterial so long as it is high enough to cause backwater.
Assuming the theory of respondent to be correct, and assuming that the Spragg dam did cause the river between it and the Merritt dam to fill with sand so that eventually the sand reached to the top of the Merritt dam, it then is a physical fact that the two dams would thereafter cooperate in causing a deposit of sand in the river above the Merritt dam.
It is to be regretted that the laws of hydraulics controlling the deposit of material carried in suspension in flowing streams have not been demonstrated so far as to establish as a known law whether backwater from a dam will or will not cause a deposit above the point of backwater.
3. This is the first case where a dam used to divert water for purposes of irrigation has been charged with responsibility for an overflow alleged to have been occasioned by filling the bed of the stream with a deposit of sand far above the point reached by backwater caused by the dam. If scientists had determined these laws so that they could be applied to the facts of this case, courts would be bound to apply them. In so far as experts upon hydraulics have expressed their opinion, both in this case and in the Hand v. Catawba Power Co. case, cited supra, such opinion has been that the dam would not affect the deposit of sand and silt much above the point of backwater. Where, because they are unknown, it is impossible to apply fixed natural laws to a solution of the problem, courts must resort to the best means available of determining, if possible, the truth of the case. Hence expert testimony may be considered, as well as facts established by the testimony of other witnesses; but, as before pointed out, nonexpert witnesses may not be permitted to invade the province of the jury and testify directly to the ultimate fact in the case.
In considering the question of what caused the overflow for which recovery is sought, and assuming the correctness of respondent's theory, there are, in our opinion, other elements to be reckoned with besides the Spragg, Alcorn & Bewley dam. We believe no one will deny that the rapidity with which water flows has a good deal to do with the percentage of deposit of the silt which is carried in the water. If sufficient sand is deposited into running water to raise the percentage of sand from 5 per cent to 50 per cent, it can readily be seen that the speed of the flow will be greatly decreased. The plaintiff made several cuts through his ranch for the purpose of straightening the river. The method of making a majority of these cuts was to dig a ditch about two or three feet wide and turn the water of the river into the ditch that it might, in the ordinary process of erosion, wash out a channel wide enough to carry all the waters of the stream. One of the cuts was made by taking off the surface to a depth of two feet and thirty feet wide. The contents of all of the cuts, which washed down the river, were over 30,000 cubic yards. The last-named cut was made in April, 1907, and the water turned in before the overflow of that year, though it is not known to exactly what depth the cut was washed out at the time of the overflow. The cutting away of the soil by the water flowing through these new cuts necessarily had the effect of greatly increasing the sand which was carried in the water; and, consequently, in decreasing the rapidity of the flow of the stream, naturally increasing the quantity of the deposit of silt in the river below the cut. Believing, as we do, that the cuts made by the plaintiff contributed toward the filling up of the river, we are unable to see why defendant should be held liable for the total damage done to plaintiff's ranch caused by the overflows, if to any extent whatever.
It is contended by counsel for respondent that the sand washed into the river from the several cuts made by the respondent cannot be regarded as a contributing cause to the filling of the bed of the river, for the reason that an equal or greater amount of sand and silt was deposited in the old channel after the new channel was established by the cuts. In the absence of other proof, which does not appear in this case, it would not follow as a necessary conclusion of fact that these cuts, by reason of the filling up of the old channel' due to a decrease in the rapidity of the current therein, had not caused a greater deposit in the bed of the river below the cuts than would have been the case if the cuts had not been made. That would depend largely upon the character of sand and silt deposited in the old channel. A fine silt, which the normal flow of the river would carry off, leaving little or no deposit in its bed, carried from time to time into the old channel, would there be deposited owing to the sluggish current being unable to hold it in suspension, and would eventually fill the old channel. The mere fact that an equal or greater cubic content of sand and silt was deposited in the abandoned channel, without other proof, would be of little weight, in view of the fact that known laws of hydraulics determine that a stream's carrying capacity of sand, silt, or other material has a fixed ratio to the velocity of the current.
In addition to the silt from the cuts mentioned, there must have been other causes contributing to the filling of the river. It is a well-known law of hydraulics that the more the volume of water in a stream is • decreased the slower it flows, and consequently the greater is the increase in sedimentary deposit. There were on, or just above, the ranch of plaintiff, during at least a portion of the time when it is claimed the backwater from the Spragg, • Alcorn & Bewley dam caused the deposit of silt to which the overflows are attributed, at least five ditches which took water from the river, thereby decreasing the flow of the water in the river, and correspondingly increasing the deposit of silt. The last one of the ditches to be constructed was the Perazzo ditch, in 1903, upon plaintiff's land, and with his consent. As we view the case, each of the ditches alluded to - contributed its share to the filling up of the river.
4. It is the contention of appellants that, under such circumstances, they are liable only to the extent to which they contributed to the injury to plaintiff's ranch. We think their contention as to the law is correct. In the case of Blaisdell v. Stephens, 14 Nev. on page 21, 38 Am. Rep. 523, Mr. Justice Hawley, in delivering the opinion of the court, the case being similar to the one at bar, said:
"The general principle is well settled that where two or more parties act, each for himself, in producing a result injurious to plaintiff, they cannot be held jointly liable for the acts of each other. "
This view is sustained by ample authority: Gould on Waters, sec. 222; Miller v. Highland D. Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. Rep. 254; Gallagher v. Kemmerer, 144 Pa. 509, 22 Atl. 970, 27 Am. St. Rep. 673; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; Watson v. Colusa, 31 Mont. 513, 79 Pac. 15; Woodland v. Portneuf, 26 Idaho, 289, 146 Pac. 1106; South Bend M. Co. v. Lyshart, 12 Ind. App. 185, 39 N. E. 908; Harley v. Merrill B. Co., 83 Iowa, 73, 48 N. W. 1000; Swain v. Tenn. Copper Co., 111 Tenn. 430, 78 S. W. 93; Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. Rep. 656; Draper v. Brown, 115 Wis. 361, 91 N. W. 1001.
5. Error is assigned to the overruling of an objection by the defendants to the following questions propounded to the plaintiff:
"Q. Who, if any one, warned you of the building of the dam (referring to the S., A. & B. dam), and the effects of the raising of the dam ? A. One in particular was Mr. N. H. A. Mason. He is dead now. He was an owner in the Spragg, Bewley, Alcorn.
"Q. What did he say about it? A. He was speaking about that dam. He had men, or his foreman, and so on, had helped build the dam there for a number of times, and Mr. Mason says to me, 'if they keep building that dam up, some day it is going to ruin your place, ' and it was about the time, or very near the time, that I gave Mr. Mason a deed of one-half of my water right. I think it was in 1889, somewhere along there. "
At most, this testimony did not purport to be more than the giving of evidence of a statement made by one of what might or would happen at some time in the future, as distinguished from a statement as to an existing fact. It was a mere prophecy. We are unable to call to mind any rule, or conceive of any reason, which would justify the court in receiving such testimony. (Burt v. Wigglesworth, 117 Mass. 306.) It is contended on the part of respondent that this testimony is proper because Mason owned the Miller & Lux ranch at the time it is alleged he made the statement. Conceding that the theory advanced as to the law is correct, we find no evidence in the record to sustain it.
6. On the trial defendant objected to certain questions going to establish the extent of plaintiff's damage. The witness William Rallens was asked:
" Q. In examining the ranch, did you form any opinion as to the extent of the damage caused to the land by the overflow? A. I did.
"Q. What in your judgment, then, from your examination, do you consider the land overflowed was damaged? A. I consider two-thirds of its value."
We think the objection should have been sustained. If the witness was qualified, he might have testified as to the value of the land before and after the overflow. Such would have been the proper method of arriving at the damage. (Howell v. Medler, 41 Mich. 641, 2 N. W. 911; Upcher v. Overlender, 50 Kan. 315, 31 Pac. 1080; International R. Co. v. Fickey, 125 S. W. 327; Louisville R. Co. v. Sparks, 12 Ind. App. 410, 40 N. E. 546; Van Deusen v. Young, 29 N. Y. 20; Tenn. Co. v. McMillan, 161 Ala. 130, 49 South. 880; Central Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392.)
7, 8. Prior to the trial of the case, the deposition of plaintiff was taken, on the motion of defendants. Upon the trial 'defendants objected to certain questions asked the plaintiff on cross-examination by his attorneys at the taking of the deposition. One of the questions was:
" Q. Take for five years before the floods, Mr. McLeod, how much, on an average, did you clear off of this entire ranch?"
There were several just such questions to which objections were made and overruled. It is the contention of defendants that, notwithstanding the fact that the deposition was taken at their instance, plaintiff having offered the deposition in evidence, he made it his evidence, and that, if their objections are meritorious under the accepted rules of evidence, they ought to have been sustained. Section 3505, Cutting's Compiled Laws, provides:
"When a deposition has once been taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it."
In section 3504, Cutting's Compiled Laws, it is provided:
" And thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions."
It would appear that the statute has pretty clearly declared the rights of the respective parties in such matters, the statute itself providing that the evidence shall be subject to all legal exceptions. Section 3504 also provides:
" But if the parties attend at the examination, no objections to the form of the interrogatory shall be made at the trial, unless the same was stated at the time of the examination."
This seems to leave no room for doubt as to the meaning of the exception quoted above. The logic of the situation is that the court could rule upon the legal sufficiency of the matter involved upon the trial, while an objection to the form of the question should be pointed out' at the time of the taking of the deposition, that it may be corrected at that time if the objection is deemed serious by the opposing party. It was said in Hatch v. Brown, 63 Me. 410:
" When a party uses a deposition taken' by his opponent, but not offered in evidence by him, he makes it his own, and his opponent has the same right of objection to the interrogatories and answers which he would have had if the deposition had been taken by the party offering it; and he is not precluded by the fact that the interrogatories objected to were propounded by himself when the deposition was taken."
See, also, In Re Smith, 34 Minn. 436, 26 N. W. 234; 6 Ency. Pl. & Pr. p. 585.)
We can conceive of no theory upon which such testimony would be proper as a basis for the fixing by the jury of plaintiff's damages. The objection should have been sustained.
Counsel for appellant, and counsel appearing amicus curise, have urged very forcibly that this court ought to hold that, in the absence of negligence, there could be no liability in damages in this case, even assuming that a dam could cause a deposit of sand in the bed of a river above the highest point of backwater, for the reason that dams in river channels are essential to irrigation in this state; that the law recognizes irrigation not only as lawful but as specially favored in the law; and that damage, caused otherwise than by direct overflow, incapable of being foreseen or guarded against, is such a consequential damage that no liability in the law exists therefor. Many authorities, applicable to public or quasi-public utilities, are cited in support of this contention. We have no hesitancy in saying that this rule ought to be held applicable in cases of irrigation dams, but we are not prepared to say that it should be applied to every sort of irrigation dam that might be constructed. In a stream, carrying large quantities of sand and silt during portions of the year, it might be regarded as negligence to maintain a solid dam, while the maintenance of a dam with movable gates, by which the flow of the river and the deposit of silt could be regulated, could not be held to be negligence, and no liability for damage could be chargeable thereto, otherwise than an overflow due directly to backwater.
While there are various other errors assigned, we deem it unnecessary to consider them.
It is ordered that the order and judgment appealed from be reversed, and that the case be remanded.