Field J., concurring.
The first assignment of error in this case is for the refusal of the Court below to grant a continuance on the affidavit of the defendant.
In the case of Musgrove v. Perkins (9 Cal. 211) we held that “ the granting or refusal of a continuance rests in the sound discretion of the Court below; and its ruling will not be reviewed except for the most cogent reasons. The Court below is apprised of all the circumstances of the case and the previous proceedings, and is, therefore, better able to decide upon the propriety of granting the application than an appellate Court; and when it exercises a reasonable, and not an arbitrary discretion, its action will not be disturbed.” It is true that the facts in this case show that the action of the Court approached very closely the line within which, it is intimated, this Court will interfere. But in such cases we think the party whose application has been refused should move the Court for a new trial, and support the application by the affidavits of the absent witnesses, if such affidavits can be obtained, or it should be shown to the Court that they cannot be obtained. Unless this be done, this Court will not interfere, in civil cases, with the action of the lower Court.
The second assignment of error is without merit. It has nowhere been held that a defendant is not responsible for injuries done the ditch of another by the deposit of mud and sediment in it. The doctrine of the Bear River Company v. York Mining Company probably went quite as far as it ought to have gone, when confined to the express points there announced, and we certainly feel no disposition to extend it further.
Judgment affirmed.