nated was allowed.209 So, an injunction will be granted for the diversion of water from a stream,210 where the injury is continuing.211 § 2454. Injury to garden. In an action for injuries to a garden, occasioned by the breaking of a reservoir, the court instructed the jury that, to entitle plaintiff to recover, it must appear that the breaking of the reservoir resulted from the gross negligence of defendants; and then proceeded to explain that defendants must have taken the same care of their reservoir and of the water in it, as they would have done, being prudent men, had the garden of plaintiff been their own property; and that otherwise they had been guilty of gross negligence, and were liable in damages. It was held that, although the instruction without the explanation was wrong, still with the explanation it was right, and could not have misled the jury.212 § 2455. Injury to land and crops. Where defendants erected a dam, whereby the waters which during freshets found their way into the bay, across the land of the defendants, were diverted from their natural course, and made to flow upon the plaintiff's land, injuring the crops and rendering it unfit for cultivation, the dam is clearly a nuisance.213 In Ohio, however, the use of streams of water for domestic, agricultural, and manufacturing purposes being to some extent publici juris, an action for a nuisance caused by an obstruction or diversion of the water of a stream for any such purpose will not lie, unless the damages occasioned thereby be real, material, and substantial.214 § 2456. Obstructing flow of tailings. In an action where the plaintiffs allege that they are the owners of a certain mining claim, which claim can not be worked without the use of the 209 Ramsay v. Chandler, 3 Cal. 90. 210 Tuolumne Water Co. v. Chapman, 8 Cal. 392. 211 Coker v. Simpson, 7 Cal. 340; see Rupley v. Welsh, 23 id. 452. 212 Todd v. Cochell, 17 Cal. 97. 213 Castro v. Bailey, Cal. Sup. Ct., Oct. Term, 1869, citing Ashley v. Wolcott, 11 Cush. 192; Luther v. Winnisimmet Co., 9 id. 171. 214 Cooper v. Hall, 5 Ohio, 321; followed and approved in McElroy v. Globe, 6 Ohio St. 187. canyon as an outlet for water and tailings; that the grade of the canyon is light, and that the defendants have erected and are maintaining a dam across the canyon at a point below their claim, which obstructs the flow of water and tailings to such an extent as to render the working of their claim impracticable, upon an issue of title to the ground to entitle the plaintiffs to recover, it should have appeared: 1. That the plaintiffs owned the ground; 2. That the dam prevented them from working it to advantage; 3. Alternatively, that the defendants had no title to the bed of the canyon; or if they had, that their right was subsequently acquired, or if prior, that the dam was not needed to enable the defendants to work to advantage.215 § 2457. Overflowing water ditch. A complaint which alleges that the plaintiffs were on a certain day the owners and proprietors of a certain valuable water ditch, for the purpose of conveying water, and at which time and place the defendants. were also owners of a certain other ditch for the purpose aforesaid, and that afterwards, on the same day and year, at, etc., aforesaid, the said defendants' ditch was so badly and negligently constructed and managed, and the water therein so carelessly and negligently attended to, that said ditch broke away, and the water therein flowed over and upon the said ditch of plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stone, earth, and rubbish, and breaking said plaintiffs' ditch, and depriving them of the use and profit of the water flowing therein, to said plaintiffs' damage three thousand dollars, and thereof they bring suit, is sufficient.216 The overflowing of § 2458. Overflowing of dam and ditch. a dam is a nuisance.217 While a ditch by which the waters of a stream have been appropriated is out of repair, and not in a condition to carry water, an action will not lie to abate as a nuisance a reservoir, constructed across the bed of the stream, above the head of the ditch, by which the water of the stream is collected and detained, and caused to flow unequally.2 215 Stone v. Bumpus, 40 Cal. 430. 218 216 Tuolumne County Water Co. v. Columbia & Stanislaus Water Co., 10 Cal. 195. 217 Ramsay v. Chandler, 3 Cal. 90; and see McKee v. Canal Co., 125 N. Y. 353; 21 Am. St. Rep. 740. 218 Bear River & A. W. & M. Co. v. Boles, 24 Cal. 359. Vol. II-23 § 2459. Raising dam. Because an appropriator diverted the water of a stream by means of a dam and ditch, it does not necessarily follow that he had a right to raise his dam higher and higher, as occasion might require, to obviate obstruction in the use of the water in the manner of its said original appropriation.219 In such cases, the question of his right must be subordinate to a subsequent appropriator.220 $2460. Relief. Where plaintiff's mining claim was overflowed by means of a dam erected by the defendant, the decree should have ordered a reduction of the dam so as to prevent the overflow, or, if necessary, its entire abatement.221 § 2461. Sufficient averment. In an action for damages, and for breaking defendant's dam, and flooding plaintiff's mining claim, where the complaint is in one count, and charges that "defendant's said reservoir, by reason of some defect in its construction, insufficiency for the purpose for which it was constructed, or carelessness and mismanagement on the part of said defendants, broke away," etc., it was held that the complaint is sufficient.222 § 2461a. Pollution of stream jurisdiction. A complaint alleging that the relators are owners of land situated in certain counties of the state which is irrigated by the waters of a certain creek; that the defendants are operating stampmills, and· polluting the stream with mineral refuse therefrom, thus rendering the water unfit for irrigating purposes, and the ultimate effect of which will be to destroy the value of vast tracts of land for agricultural uses, and praying that the defendants be perpetually enjoined from so polluting the water, tenders an issue of a private and not of a public character, for the trial of which the Supreme Court of Colorado will not assume original jurisdiction.223 § 2461b. Easement in waters of spring — quieting title thereto -venue. An action to quiet title or to determine an adverse 219 Nevada Water Co. v. Powell, 34 Cal. 109: 91 Am. Dec. 685. 220 Id. 221 Ramsay v. Chandler, 3 Cal. 90. 222 Hoffman v. Tuolumne County Water Co., 10 Cal. 416. 223 People v. Rogers, 12 Col. 278. As to right of action for pollution of water, see Barnard v. Sherley, 135 Ind. 547; 41 Am. St. Rep. 454, and note. claim to an easement in the waters of a spring situated upon the lands of the defendant, and to a right of way over the defendant's land for the purpose of conducting such waters to the premises of the plaintiff, and to obtain an injunction against interference with the plaintiff's pipes from such spring, is a real action, which must be brought in the county where the subjectmatter of the action is situated, and a demurrer to the complaint in such action, when brought in another county, upon the ground that the court has no jurisdiction of the subject-matter of the action. should be sustained, and the action dismissed.224 224 Pacific Yacht Club v. San Salito Bay Water Co., 98 Cal 487; and see Fritts v. Camp, 94 id. 394; § 52, ante. The plaintiff complains, and alleges: I. That he and the defendants C. B. and D. B. are the owners as tenants in common [or joint tenants] of the following described real estate situate in the county of to-wit [insert full description], and they are now in possession thereof. II. That the plaintiff has an estate of inheritance therein to the extent of one undivided third part or interest in the fee thereof [or other estate], and that each of the said defendants C. B. and D. B. have a similar interest and estate therein, to-wit, an undivided third part thereof [or other proportions according to the fact]. III. That there are no liens or incumbrances thereon appearing of record, and that no person other than the plaintiff and said defendants are interested in said premises as owners or otherwise. Wherefore the plaintiff demands judgment: 1. For a partition of the said real property, according to the respective rights of the parties aforesaid; or if a partition can not be had without material injury to those rights, then for a sale of the said premises, and a division of the proceeds between the parties according to their rights. § 2463. For partition of real property · cumbrances, etc. unknown owners, in [TITLE.] Form No. 582. The plaintiff complains, and alleges: I. That he has an estate of inheritance, to the extent of the one undivided fourth part thereof, in fee, in the following de scribed premises, situate in the county of .... [insert description], and he is now in possession thereof. to-wit |