delivered the opinion of the court. Heydenfeldt, Justice, concurred.
From the record in this case, it appears that the plaintiffs constructed a dam across a stream called Shady Creek to French Corral, where the water was used by plaintiffs for mining purposes.
After the construction of plaintiffs’ work, and plaintiffs had been for a considerable time in possession of and using the waters of Shady Creek, the defendants constructed a work of a similar nature, whereby they brought water from Grizzly Cannon and Bloody Bun, to a place known as Cherokee Corral, where the water from defendants’ ditch was used for mining purposes. The water thus used by defendants at Cherokee Corral, from that point found its way by natural channels and by the natural level of the country, into the waters of Shady Creek, above the dam of plaintiffs.
The defendants subsequently constructed a dam above the plaintiffs’ dam, run a ditch to French Corral, and diverted a portion of the waters of Shady Creek, so that at times no water descended to plaintiffs’ works, the entire quantity being used by defendants’ ditch above.
The point made by the defence, on the trial of the cause below, was, that by the act of the defendants the waters of Grizzly *252Cannon and Bloody Run, were caused to flow into Shady Creek ; that therefore the defendants had a right to construct a dam and ditch above plaintiffs, and carry off the same quantity of water from Shady Creek, that flowed from defendants’ ditch at Cherokee Corral.
This defence is set up substantially in the answer of defendants, and the court below held, that defendants had an exclusive right to the water which they had caused to flow into Shady Creek, and could withdraw the same. The instruction refused and the charge given by the court, both assume this right in the defendants.
In considering the question presented, it is to be observed, that the foundation of the plaintiffs’ right was their first possession. Of all the waters running into Shady Creek, they were in the possession and use until defendants constructed their ditch above them, running to French Corral. There is no pretence of right in the defendants to carry off water from Shady Creek, except a claim of property in the water from Cherokee Corral.
It is laid down by our law writers, that the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use.
The owner of land through which a stream flows, merely transmits the water over its surface, having the right to its reasonable use during its passage. The right is not in the corpus of the water, and only continues with its possession. Angelí on Water Courses, p. 86. A party cannot reclaim water that he has lost, 2 Black. Com. p. 18. When the water of Grizzly Cannon and Bloody Run,, left the possession of the defendants at Cherokee Corral, all right to, and interest in, that water was lost by the defendants. It might be made the property of whomsoever chose to possess it. Without the agency of the defendants, it found its way into Shady Creek, joining the waters then in the possession of the plaintiffs, and became a part of the body of water used and possessed by them.
As defendants had lost all right in the water, they could have no right to withdraw it from the possession of the plaintiffs. The rule laid down by the court below, while it is a departure from all the rules governing this description of property, would *253be impracticable in its application, and we think it much safer to adhere to known principles and well-settled law, so far as they can be made applicable to the novel questions growing out of the peculiar enterprises in which many of the people of this State are embarked.
The judgment of the court below will be reversed, and the cause remanded for a new trial.