delivered the opinion of the Court—Terry, J., concurring.
This was an action of trespass on the case for negligence in constructing a water-ditch so that it gave way and flooded the plaintiffs’ mining-claims. Judgment for the defendants, and motion for new trial overruled, from which plaintiff appeals.
The error assigned by the appellant is the refusal of the Court to give the following instruction : “ That when a ditch is insufficient, and breaks from the weight or quantity of water permitted to flow through the same, the law presumes negligence in its construction or continuance, and if from the evidence the jury believe that the defendants’ ditch was insufficient to carry the water and broke from the weight or quantity allowed to flow through the same, and that the plaintiffs were injured by such breakage, the jury will find for plaintiffs.” The correctness of this instruction must depend upon the testimony before the jury.
It appears from the record that the question of negligence had been submitted to them as a question of fact under the instruction of the Court; that evidence had been introduced by the defendants to disprove the charge or exculpate themselves. It was shown, among other things, that the sides of the ditch at the place it gave way had been dug down or injured by some burrowing animal, and also that a tree had accidentally fallen across it, causing the water to dam up, and thereby creating a greater pressure upon the sides of the ditch. It was further shown that the defendants had located and constructed their ditch previous to the location of the plaintiffs’ mining-claims. No negligence, in fact, was shown, other than that which the law would presume from the breakage of the ditch.
The important fact having been admitted, that neither of the parties claim as holders of the soil, but simply by virtue of location or appropriation, it becomes necessary to ascertain what rights the plaintiffs, who were subsequent locators, acquired against the defendants.
Some of thé earlier English authorities recognize the doctrine that a person may (even as between owners of the soil) construct or continue what would otherwise be an actionable nuisance, provided that, at the commencement of it, no person was in a condition to be injured by it, or, in other words, that mere priority as between owners of the soil gave a superior right. If a person afterwards, by building or otherwise, put himself in a *340situation to be injured by such structure, it was termed “ coming to a nuisance.”
This doctrine has long since been exploded on the most obvious principles of sound reason. The right of the owner of the soil to the free use and enjoyment of the same is held to exist anterior to any erection that may be made by an adjoining proprietor, and in such cases the maxim “ sic utere tuo ut alienum non Icedas” applies. It will be observed that the reason of the rule is founded on the ownership of the soil, and that as between proprietors the same rights or privileges are supposed to exist (except in some few instances) ; but in a case like the present, where neither party claims an ownership in the soil, and all the rights they possess relate back, or are acquired at the date of their respective locations, the reason of the rule ceases, and the maxim, “ quiprior est in tempore, potior est injure,” as applied by this Court to cases involving disputes growing out of mining-claims, would seem more applicable.
In fact, any other rule would allow a malevolent person to make a trespass whenever he pleased, by settling along the line of a water ditch or canal where he supposed from its location, or construction, it was most likely to give way. There is no doubt that the owners of a ditch would be liable for wanton injury or gross negligence, but not for a mere accidental injury where no negligence was shown. In such cases, the maxim “ sic utere,” etc., must be construed with reference to the rights of all the parties concerned, and no man can be deprived of the due enjoyment of his property and held answerable in damages for the reasonable exercise of a right. 15 Johns., 43; 17 Johns., 99 ; 6 Johns., 90; and 3 Manning & Granger, 315. In the latter case it was held that a railroad company were not liable for damages caused by fire from sparks from their engine, unless negligence was proven by the plaintiff.
Having thus established what we believe to be the law of the case, it follows that the Court properly refused the instruction asked.
Judgment affirmed.