Field, C. J. and Baldwin, J. concurring.
The plaintiffs are the owners of certain mining claims, situated in the bed or channel of a stream known as Missouri canon. The defendants own claims in the same stream, above and adjoining those of the plaintiffs. The claims of the defendants were first located. The complaint alleges, that the defendants wrongfully constructed a flume upon the claims of the plaintiffs, and deposited thereon a large quantity of tailings from claims above; and that the plaintiffs were greatly injured and damaged thereby. The answer admits the construction of the flume, and the deposit of tailings, but denies that these acts were wrongful; and avers that the flume was constructed by the defendants for the purpose of working their claims; that its construction was proper and necessary for that purpose, and that the deposit of tailings was occasioned by the ordinary working of these claims. There is no dispute as to the facts.
On the trial of the case, the Court instructed the jury, among other things, that a person first locating a mining claim in the bed of a stream, is entitled to the channel below as an outlet; and that when such outlet, from the usual mining operations above, becomes obstructed, he may open the same, and, if he can do so by no other means, may con*143struct a flume down the channel as far as necessary, and as far as the same can be constructed without considerable damage to claims subsequently located.
The real question in the case is, whether the defendants, as a matter of strict legal right, are entitled to an easement upon the plaintiffs’ claims, for the purposes mentioned in the answer. Upon this question we readily confess that our convictions are decidedly adverse to the position of the defendants. We do not see upon what legal foundation the right claimed by them can possibly rest. As a proposition of law, the right of one person for his own advantage to enter upon and use the property of another, without his consent, cannot be maintained. The doctrine of necessity, invoked by the defendants, and relied upon by the Court below, has no application. Under certain circumstances a person may have a right of way, by necessity, over the land of another ; but the doctrine that one person may have a right, by necessity, to go upon the land of another, and erect thereon buildings or other structures, we are by no means prepared to recognize. The fact that the land is a mining claim can make no difference, for the principle is the same, whatever is the character of the property. If the acts of the defendants were authorized by any local custom or regulation, its existence should have been averred and proved.
Our opinion is, that the acts complained of are without sufficient justification ; and that the Court erred in its view of the law, as given to the jury. The defendants had unquestionably the right to work their claims, but the same right belonged to the owners of every other claim on the stream. The channel of the stream was the natural and necessary outlet for all, and no one had, as against the others, the right to its exclusive use for that purpose. The recognition of such a right would be in violation of every principle of legal justice. The true rule is, that each person mining in the same stream, is entitled to use, in a proper and reasonable manner, both the channel of the stream, and the water flowing therein ; and where, from the situation of different claims, the working of some will necessarily result in injury to others, if the injury be the natural and necessary consequence of the exercise of this right, it will be damnum absque injuria, and will furnish no cause of action to the party injured. The reasonableness of the use is a question for the jury, to be determined by them upon the facts and circumstances of each particular case.
Judgment reversed, and cause remanded for a new trial.