Terry, C. J., and Field, J., concurring.
At the first presentation of the questions on the demurrer to the complaint, we were inclined to think it well taken; but on reflection, we think that it is not. The complaint is for negligence, by defendants insufficiently building a dam across a watercourse, or carelessness and mismanagement on the part of the defendants, whereby the dam broke and injured the mining-claims of plaintiffs below. It will be seen that the gravamen of the action is not for building the dam. That they had a right to do, and it seems to be conceded that, if the work had been constructed as designed, no injury would have followed. Whether this negligence arose from the want of care in constructing the dam, or want of care in letting off the water, we do not think sufficiently material, under our system of pleading, to require separate counts. The main thing is the neglect of the defendants in respect to their own property, and while it is important to have the pleadings drawn with precision, it would probably lead to more trouble than it would save to require so much exactness as is claimed in this case. We presume if a bailee were charged with negligence in regard to an article bailed, that it would not be necessary to state in different counts several acts *417of negligence, as not keeping the property secure, losing it, and the like. The demurrer, therefore, was properly overruled.
The main question is on the propriety of giving the second instruction, at the instance of the plaintiff, in these words: “If the jury believe that the dam was improperly or inartificially constructed, or that defendants could have constructed it in a better or more substantial manner, so as to prevent its breaking, then they wore liable.” Our decisions upon the subject of riparian and mining rights, have gone upon the theory that the appropriator was the owner. The question here is not whether the ditch-owner has the right to build a dam, the natural con-sequence of the construction of which is to injure a mining-claim, • or the adjacent property of another—at any rate, without making compensation to the person so injured. This case concedes that the mere fact of construction did not produce the injury; but that the negligent or improper exercise of a right, lawful ' when properly exercised, has caused the damage, and given the cause of action. The general rule is, that every man may do as he chooses with his own property, provided he does not injure another’s. But there is another rule as well established, which is, that a man must so use his own property as not to injure his neighbor’s. This last rule, however, does not make a man responsible for every injury which may arise to another from the use which the first may make of his property. It would be an intolerable hardship to hold a man responsible for unavoidable accidents which may occur to his property by fires or casualties, or acts beyond his control, though others are likewise injured. The degree of negligence which will subject the owner to liability to third persons in such cases has been settled by repeated decisions. In Angelí on Water-Courses, (380, § 336,) it is said : “ The degree of care which a party who constructs a dam across a stream of water is bound to use, is in proportion to the extent of the injury which will be likely to result to third persons, provided it should prove insufficient. It is not enough that the dam is sufficient to resist ordinary floods; for if the stream is occasionally subject to great freshets, those must likewise be guarded against; and the measure of care required in such cases is that which a discreet person would use if the whole risk were his own. In a case where the plaintiff gave evidence that the defendant was the possessor of a saw-mill and dam above the plaintiff’s works, and, by means of the dam, had raised a large body of water, about a mile in length, and varying in width from a few rods to half a mile; and that the dam gave way and let down the whole body of water upon the plaintiff’s works below, and which swept away and destroyed his property to a large amount; and at the time the dam gave way there had been no unusual fall of rain, the Court held as follows: ‘ The defendant was subject to the maxim, Sic utere tuo ut alienum non Icedas; and *418to comply with the requisition of the common law, it was the duty of the defendant to have used ordinary care and diligence in making repairs to his dam, or in drawing- off the water from his pond, to prevent injuries to the plaintiff's furnace. If the defendant did not use this care and diligence, he was guilty of negligence, and liable for consequential damages; but he was not liable for inevitable accident.’ ”
See, also, Bagley v. Mayor, etc., of New York, (3 Hill, 531;) Mayor, etc., of New York, v. Bailey, (3 Denio, 433;) Lapham v. Curtis, (5 Vermont, 371.)
And if the dam were to break without any negligence, or through inevitable accident, it would be the duty of the party to repair it and stop the injury as soon as practicable.
Applying these principles to the instructions, it will be seen that the charge is too broad. It will be perceived that the question is not what the plaintiffs could have done, but what discreet and prudent men should do, or ordinarily do, in such cases, where their own interests are to be affected, and all the risk their own.
We are not satisfied that the Court erred in refusing to give the defendants' charge; at least without some qualification; for the mere fact that the rock presented outwardly a solid appearance, etc., does not necessarily show due diligence in making it a foundation, since many other circumstances, such as the knowledge by the defendants, or the builder, of the character or qualities of such rock, or a knowledge of it from testing it, etc., might still show it was unsafe for this purpose. But it is not necessary to express a decided opinion upon this point, as we have indicated the correct rule of liability upon which the case may be properly put to the jury upon another trial.
Judgment reversed, and cause remanded.