ment had not been invaded with water. On that day the dredging company commenced sluicing earth from the hill to the Ninth avenue improvement. This was accomplished by the use of a 24-inch main under pressure. The water so used was brought by the dredging company from Lake Washington over the hill from the east. This sluicing was continued without interruption for a period of six days; that is, up to May 1, 1923. In order to escape, this large surplus of water also had to find its way out to the west through the slough through the railway grade at Fifth avenue west of Small's house. That opening did not prove sufficient for the escape of the water as so augmented in quantity, and therefore the low ground east of the railway grade, extending to within some 120 feet of Small's house, became more or less inundated, thus bringing the level of the water some 18 inches above the level of the floor of his basement and the invasion of his basement with water at approximately that depth. This water caused damage to the foundation walls of the house and also to Small's furnace in the basement, for which recovery was awarded to him.

It is contended in behalf of the dredging company that it should be exonerated from all liability to Small, because the evidence does not support, indeed negatives, as it is claimed, the conclusion that the water it used in its Ninth avenue sluicing caused the damage to Small's house. This contention seems to be rested principally upon the testimony of Small wherein he seems to say that the water came from the north towards his house through an opening in the Spokane avenue grade at Sixth avenue. It is plain that the water used in the sluicing of the Ninth avenue improvement did not come through that opening in the grade of Spokane avenue, but came through an opening in the grade of Spokane avenue at Seventh or Eighth avenue. In other words,

there were two openings in the grade of Spokane avenue, and Small seems to have been mistaken as to through which one the water from the Ninth avenue sluicing came south. The water from the sluicing of the Sixth avenue improvement came through the opening of the grade of Spokane avenue at Sixth avenue. These waters, however, and all waters coming from the north to the south and southwest towards the opening in the railway grade united in the slough a short distance south of Spokane avenue. The fact remains that the sluicing water from the Ninth avenue improvement was the surplus water which caused the inundation of several blocks of territory between Small's house and the railway grade; that is, had not the dredging company added to the water then seeking an outlet through the slough and the opening through the railway grade, the water would not have invaded Small's basement. We therefore think that the mistake of jury-mistake Small in assuming as to coursethat the water came through the Spokane avenue grade from the north at Sixth avenue, instead of at Seventh or Eighth avenue, is of no controlling force in our present inquiry.

Evidence-in

effect.

It is further contended that the fault lay with the railway company, rather than with the dredging company, in that the railway company had not provided sufficient openings through its grade on Fifth avenue and its grade for its other tracks at First avenue. The answer to this, we think, is that the openings maintained by the railway company were sufficient in size to take care of all waters seeking outlet up to April 24, 1923, and prevent resulting damage to Small's house. The railway company was bound to anticipate Railroads that the flow of wa- duty to provide ter through its for flow of openings would be augmented to the extent that was done by the dredging company.

water.

not

Contention is made in behalf of the dredging company that it in no event is liable for all of the damage to Small's house because the water from its sluicing of the Ninth avenue improvement was only a portion of the water which caused such damage. The argument seems to be that a portion of the damages in any event ought to have been assessed against the contractors who were filling the Sixth avenue improvement by sluicing. We think under the evidence the court was fully warranted in apportioning all of the damage as against the dredging company and the city. When When the dredging company commenced its sluicing operations on April 24, 1923, it seems plain that Small's basement was not threatened with

Negligenceinjury by sluieing-effect of other operations.

invasion by water.

In other words, had the dredging company not then commenced and carried forward its sluicing operations on such an extensive scale, Small's basement would not have been invaded with water at all.

Some contention is made in behalf of the dredging company that it in no event should be held liable, because it was doing the work as an independent contractor according to plans and specifications prepared by the city. We have seen that the dredging company was entirely free to bring the earth to the Ninth avenue improvement either by sluicing or as dry earth, sluicing it into place thereafter, which, of course,

Master and servant-liabil

ity of contractor

-following

ifications.

would require very much less water. This we think is plans and spec- sufficient to render it liable for the damage. The conveyance of the earth by sluicing operations was not doing something that was necessary for it to do in the construction of the improvement. The sluicing was a mere alternative means to an end; it was not the end which the city contracted to have the dredging company accomplish.

ing process. This it manifestly did by the express provision of the specifications above noted; and besides it is manifest that the city had an inspector upon the work watching its progress, who had full knowledge of the dredging company so using the sluicing process for conveyance of the earth and also had full knowledge of the possibility of damage from the turning loose of such a large volume of water in that neighborhood continuously for a period of six days, especially in view of the fact that the slough outlet through the grade of the railway on Fifth avenue was manifestly already nearly taxed to its limit. We do not think that the city ought to be permitted to escape liability merely because the dredging company was acting for it, generally speaking, as an independent contractor.

It is further contended in behalf of the city that the claim of damage filed by Small with the city council upon which he commenced this action is defective as a basis of recovery therein; this because in that claim he stated that the water "overflowed the claimant's property, . . . filled the basement beneath said dwelling to a depth of 18 inches." The argument seems to be that, because the evidence showed that the water came into the basement by seepage-that is, by merely maintaining, because of the porous nature of the ground, its level in the basement the same as outside such was not an overflow

"Every person, in the conduct of his affairs, is under a legal duty to act with care and forethought; and, if injury results to another from his failure so to do, he may be held accountable in an action at law." 20 R. C. L. p. 7, § 2.

But no case has been found on the specific question now under annotation, with the exception of the reported case (SMALL V. SEATTLE, ante, 125) and some mining cases.

It is well settled that a miner, regardless of whether he is a prior owner or not, has no right to allow the water containing débris and tailings, which he has used in his mining operations, to run free into a stream to the injury of the mining, agricultural, or domestic rights of those below, or upon another's property to the injury of such rights. Esmond v. Chew (1860) 15 Cal. 137, 5 Mor. Min. Rep. 175; Logan v. Driscoll (1862) 19 Cal. 623, 81 Am. Dec. 90, 6 Mor. Min. Rep. 172; Levaroni v. Miller (1867) 34 Cal. 231, 91 Am. Dec. 692, 12 Mor. Min. Rep. 232; Lincoln v. Rodgers (1870) 1 Mont. 217, 14 Mor. Min. Rep. 79; Woodruff v. North Bloomfield Gravel Min. Co. (1883) 8 Sawy. 628, 16 Fed. 25; Woodruff v. North Bloomfield Gravel Min. Co. (1884) 9 Sawy. 441, 18 Fed. 753. "No person, natural or artificial, has a right, directly or indirectly, to cover his neighbor's land with mining débris, sand, and gravel or other material, so as to render it valueless," said the court in Hobbs v. Amador & S. Canal Co. (1884) 66 Cal. 161, 4 Pac. 1147; McLaughlin v. Del Re (1886) 71 Cal. 230, 16 Pac. 881; 48 A.L.R.-9.

Fitzpatrick v. Montgomery (1897) 20 Mont. 181, 63 Am. St. Rep. 622, 50 Pac. 416; Yuba County v. Kate Hayes Min. Co. (1903) 141 Cal. 360, 74 Pac. 1049; Provolt v. Bailey (1912) 62 Or. 58, 121 Pac. 961.

Nor can such right be acquired by any custom. In Lincoln v. Rodgers (1870) 1 Mont. 217, 14 Mor. Min. Rep. 79, supra, where the lower court gave an instruction to the effect that, if defendants proved a custom allowing tailings to run free, that would be a good defense or justification for any damage resulting to plaintiff's mining operations below, and the case was tried and judgment rendered on that theory, the court said: "We think this theory cannot be maintained in accordance with strict legal principle. To support this doctrine of free tailings by custom would be to allow a few miners or flume companies to go into the head of a mining gulch and prevent, perhaps, miles of valuable mining ground below them from being taken up and developed; because no one could tell, if they located below, how soon their ground would be entirely covered up and destroyed, under this custom of free tailings. Such a mining custom would be in contravention of the leading principle that customs must not be inconsistent with the full and rapid development of all the mining resources of the country." And in People v. Gold Run Ditch & Min. Co. (1884) 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152, where the defendant company was perpetually enjoined, in an action by the state against it, from operating its hydrau

lic mines to the injury of public rights, the court said: "Undoubtedly, the fact must be recognized that, in the mining regions of the state, the custom of making use of the waters of streams as outlets for mining débris has prevailed for many years; and as a custom it may be conceded to have been founded in necessity; for, without it, hydraulic mining could not have been economically operated. In that custom the people of the state have silently acquiesced, and upon the strength of it mining operations, involving the investment and expenditure of large capital, have grown into a legitimate business, entitled equally with all other business pursuits in the state to the protection of the law. But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and, when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners."

And it is immaterial that one is guilty of no negligence in the operation of his mine, or that the mining operation could not be carried on without inflicting the injury. Thus, in Logan v. Driscoll (1862) 19 Cal. 623, 81 Am. Dec. 90, 6 Mor. Min. Rep. 172, supra, the court said: "The defendants are entitled to use their claims in a lawful manner, but no use can be considered lawful which precludes the plaintiffs from the enjoyment of their rights. This being the effect of the operations of the defendants, it is clear that their acts cannot be defended on legal grounds." In Hobbs v. Amador & S. Canal Co. (Cal.) supra, the court said: "But it is claimed that the doing

of the acts restrained by the injunction are necessary to the successful carrying on of the business in which the defendant is engaged; and that, if the defendant be enjoined from carrying on its business in that way, hydraulic mining cannot be carried on at all. Yet the acts restrained are none the less unlawful, if they are injurious to the private rights of others; and the defendant is bound by law to so conduct its business as that it shall not be derogatory to the private rights of other property owners." And in Fitzpatrick v. Montgomery (1897) 20 Mont. 181, 63 Am. St. Rep. 622, 50 Pac. 416, supra, the exclusion by the trial court of evidence offered to show the care exercised by the defendant in his mining operations to prevent the damage to plaintiff's land was held to be proper. In Woodruff v. North Bloomfield Gravel Min. Co. (Fed.) supra, where the defendant was enjoined from engaging in hydraulic mining to the injury of the complainant, the court said: "But we have nothing to do with this question as to the comparative importance of the conflicting interests, or the inconvenience to the defendants by the stoppage of their works, if they infringe the material, substantial rights of others."

However, a property owner or miner cannot insist that the stream above him shall not be used for mining purposes, and that the water shall flow to his property in a state of absolute purity. Some deterioration in the quality of the water necessarily results from carrying on mining operations with it, and, while a miner cannot so conduct his operations as unreasonably to interfere with a fair enjoyment of the stream by a lower owner, or injure the latter's rights as a prior appropriator, nevertheless the law recognizes the necessity for some deterioration, which, within reasonable limits, is damnum absque injuria. Bear River & A. Water & Min. Co. v. New York Min. Co. (1857) 8 Cal. 327, 68 Am. Dec. 325, 4 Mor. Min. Rep. 526; Mokelumne Hill Canal & Min. Co. v. Woodbury (1858) 10 Cal. 186. Thus, the court said in Fitzpatrick v. Montgomery (Mont.) supra: "We think,