Field, C. J. and Baldwin, J. concurring.
The objection to the authentication of the statement on the motion for a new trial, is not well taken. The statement is signed by the Judge, and the minutes of the Court show that it was used on the hearing of the motion. No mode of authentication is pointed out by the statute, and any satisfactory evidence that the statement has been examined and approved by the Judge, is sufficient. This evidence, must, of course, appear in the record, in some legitimate and proper form.
This is an action to recover damages for the diversion of water from Deer creek, in Nevada county. The complaint sets forth that the plaintiffs are the owners of two certain ditches, by means of which they appropriated the water of that stream for mining purposes, and that the defendants wrongfully diverted such water, and deprived the plaintiff's of the use of the same, to their damage, etc. The answer admits the existence and ownership of these ditches, but denies that the plaintiffs appropriated the whole of the water of the stream, and denies that the defendants diverted any portion of the water to which the plaintiffs were entitled. The answer states, among other things, that the defendants are also the owners of certain ditches, by means of which they appropriated the- surplus water of the stream, over and above the quantity appropriated by the plaintiffs; that neither of the plaintiffs’ ditches, as originally constructed, possessed the capacity to convey more than one hundred inches of water; and that since the appropriation by the defendant, these ditches have been greatly enlarged, and their capacity materially increased. It states, further, that the plaintiffs are the owners of certain other ditches tapping the stream at different points above the ditches mentioned in the complaint, and that at the time during which it is averred that the defendants wrongfully diverted the water, the plaintiffs were themselves diverting, through such other ditches, the entire quantity to which they were in any manner entitled. The answer contains several other defenses, but a particular reference to them is unnecessary for the purposes of this opinion.
*178The ditches from which it is claimed that water has been improperly diverted by the defendants are situated on the north side of Deer creek—one of them is called the Deer Creek ditch, and the other the Coyote ditch. The other ditches belonging to the plaintiffs are; 1st. The Deer Creek Mining Co. ditch, on the south side of the stream; 2d. The Big Snow Mountain ditch, on the north side of the stream; and, 3d. The Little Snow Mountain ditch, on the same side. These ditches tap the stream in the order above enumerated. The defendants’ ditches are: 1st. The ditch known as Laird’s Gold Flat ditch, situated on the south side of the stream, below all the ditches of the plaintiffs ; and, 2d. Laird’s new ditch, on the north side of the stream, between the plaintiffs’ Coyote ditch and their Big Snow Mountain ditch. The diversion of water through the latter ditch of the defendants constitutes the cause of action stated in the complaint.
The learned Judge before whom the case was tried in the Court below, in overruling the motion for a new trial, placed his decision upon the ground that the jury were authorized to infer from the evidence that the plaintiffs themselves had diverted the water to which they were entitled from their Deer Creek and Coyote ditches by means of their other ditches above. The counsel for the appellants, in referring to this decision and the reason for it, say: “ We differ materially and radically from the learned Judge upon the character of the evidence in regard to damages ; but the difference arises from the different points of view from which we look at the question. If the evidence respecting the Gold Flat ditch was, as held by his Honor, properly admitted, then, perhaps, some portions of the testimony respecting damages might be considered as conflicting; but if, as we contend, that evidence ought to have been excluded, as improper, there is no conflict whatever. No one, not even the respondents, will pretend to say that we did not establish, by uncontradicted proof, that Laird’s new ditch had frequently taken water from the creek when we were in actual need of the same water to fill our Deer Creek and Coyote ditches. Their answer to this proof consists, not of a denial of its truth, but of an attempt to show that we had diverted all the water to which we were entitled, by means of the Deer Creek Mining Co.’s and the Snow Mountain ditches. But both of the last named ditches are, as we have very conclusively shown, prior in date of construction to Laird’s new ditch, and the Deer Creek Mining Co.’s ditch has priority over the Gold Flat ditch, so that, after all, the respondents’ own argu*179ment necessarily has the effect to limit the controversy as respects dam ages to the Snow Mountain and Gold Flat ditches. Of course, then, if our views in regard to the Gold Flat ditch are correct, this hypothesis of the defendants falls to the ground, and the single question remains to be determined, whether the defendants’ new ditch did or did not, within the period charged in the complaint, divert water to which the plaintiffs’ Deer Creek and Coyote ditches had the preference, and on this point, leaving the Gold Flat ditch out of sight, there is no dispute or controversy.” This quotation from the brief of appellants’ counsel presents fully and fairly their view of the case, and avoids, to a great extent, the necessity for a critical examination and elaborate review of the evidence. Their position is simply this: that all the evidence in regard to the Gold Flat ditch was improperly admitted, and that rejecting this evidence, there was no conflict of testimony upon the question of damages. If the evidince was admissible, it is upon their own showing, sufficient to support the verdict.
The object of this evidence was to show that the defendants were entitled to a certain quantity of water for their Gold Flat ditch, and that they diverted this quantity through their new ditch instead of the other, which it was claimed they had the legal right to do. The evidence having been admitted, the Court instructed the jury in effect, that a person entitled to divert a given quantity of the water of a stream, may take the same at any point on the stream, and may change the point of diversion at pleasure, if the rights of others are not injuriously affected by the change. The following instruction, asked by the plaintiffs, was refused: “If the jury believe from the evidence that the dam of the the defendants’ Gold Flat ditch is below the dams of the Deer Creek and Coyote ditches, and that the dam of the defendants’ new ditch is above the dams of the Deer Creek and Coyote ditches, then, even if the defendants had a prior right to any of the waters of Deer Creek for their Gold Flat ditch, they could not substitute their new ditch for their Gold Flat ditch, and use the water to which, as owners of the Gold Flat ditch, they were entitled, in such new ditch.” As the instruction given by the Court embodies the principle upon which this evidence was admitted, and upon which the instruction asked by the plaintiffs was refused, a determination of the correctness of that instruction disposes of tile whole 'question.
This Court has never departed from the doctrine that running water, so long as it continues to flow in its natural course, is not, and cannot *180be made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property; but it has been distinctly declared in several cases that this right carries with it no specific property in the water itself. We are not called upon to deter.mine the character of the property which the owner of a ditch has in the water actually diverted by and flowing in his ditch. With reference to such water, his power of control and right of enjoyment are exclusive and absolute, and it is a matter of little practical importance whether, in a strict legal sense, it be or be not private property. In regard to the water of the stream, his rights, like those of a riparian owner, are strictly usufructuary, and the rules of law by which they are governed are perfectly well settled.
It is contended that the principle embodied .in the instruction is in direct conflict with this doctrine, and that it can only be maintained upon the theory of a private ownership in the water itself. This position is clearly untenable. If the Government, which in this instance is the riparian proprietor, had granted to the defendants the right to divert from the creek a given quantity of water, without restriction as to the place of diversion, it is clear that the right could be exercised at any point on the stream, though the effect of the grant would not have been to convey any property in the corpus of the water, for no such property is vested in the Government. It is obviously immaterial whether the right was acquired under an express grant, or by prescription, or rests in the parol license, or the presumed consent of the proprietor. The difference relates to the mode of determining the existence and extent of the right, and not to the manner of its exercise and enjoyment. Angelí, in his work on water courses, in treating of easements acquired by prescription, says: “ The extent of the presumed right is determined by the user, on which is founded the presumed grant, the right granted being commensurate with the right enjoyed.” (Ang. on Water Courses, sec. 224.) But he also says, that “ although the extent of the right is to be measured and regulated by the enjoyment upon which the right is founded-, the party is yet allowed freedom in the manner of exercising it.” (Id. sec. 226.) “ In this country the doctrine is well settled,” says the same author, “ that where a right has been acquired by virtue of twenty years’ enjoyment to use a certain quantity of water, a change in the mode and objects of use is justifiable ; and here, as in England, the only restriction is, that the alterations made from time to time shall not be injurious to those *181whose interests are involved.” (Id. sec. 227.) “All that the law requires is, that the mode or manner of using the water should not have been materially varied, to the prejudice of others.” (Per Chancellor Walworth, in Belknap v. Trimble, 3 Paige Ch. R. 605.) The case of Whittier v. The Cocheco Manufacturing Co. (9 N. H. 454) is directly in point. It was there decided that a change may be made in the place, as well as in the mode and objects of the use, if the quantity of water used is not increased, and the change is not to the prejudice of others. It was held that a party who had acquired by prescription a right to take a certain quantity of water at a particular dam, might open his gates and draw that quantity, without using it there, in order to use it at other works below on the same stream. These authorities show conclusively, that in all cases the effect of the change upon the rights of others is the controlling consideration, and that in the absence of injurious consequences to others, any change which the party chooses to make is legal and proper. It follows that in this case the law was correctly given by the Court, unless the rights of the parties are distinguishable from the class of rights to which these authorities refer, and the same rules and principles are not applicable. Upon this subject it is only necessary to consider, that none of the rights involved in this controversy are founded upon a legal title, and that the safety and security of the parties require that the rights of each, as fixed by the priority and extent of their respective appropriations, should be regarded as perfect and absolute as if they had been acquired by prescription, or were held under an express grant from the riparian owner. This is the only reasonable rule which can be adopted in cases of this character; and it is the more reasonable, as it enables us to test the rights of parties by certain well settled principles of law, instead of relying upon our own unaided reason and judgment.
The next most important question in the case, and the only additional one which we propose to consider, relates to the effect of the verdict. It is contended that under the issues presented by the pleadings, the effect of the verdict is to establish the original capacity of the plaintiffs’ Deer Creek and Coyote ditches at one hundred inches of water, and to limit the right of diversion through each of those ditches to that quantity. The evidence shows very clearly that their capacity was much greater, and if the effect of the verdict were as contended, it would be a great hardship to the plaintiffs to permit it to stand. But we think that such is not its legal effect, and even if it were, we do not *182see upon what principle we could disturb it. There were several separate and distinct defenses, each of which was sufficient to defeat the action. These defenses were submitted to the jury, together with the evidence in support of each, and it is impossible for us to determine upon what particular issues the verdict was found. Nor is it necessary that we should do so, for if it be right as to one, it cannot be set aside, though wrong as to all the others. “If there be two issues,” says Washington, J. in Lonsdale v. Brown, (4 Wash. C. C. 148) “or issues on two counts, and the verdict be not contrary to evidence as to one of them, the Court will not grant a new trial, though it be contrary to evidence as to the other, for since the verdict is right in part, the Court will not set it aside.” (See also Grah. & Wat. on New Trials, 1339 ; 1 Barnes, 9, 317, 333 ; and 9 Bac. Ab. 600, Bouv. ed.)
We think this verdict cannot in any event be disturbed, but we are of opinion that its legal effect is different from that attributed to it by the plaintiffs. The rule is, that a verdict found on any fact or title distinctly put in issue, is conclusive in another action between the same parties or their privies, in respect of the same fact or title. (2 Wheat. Selw. 1356; Outram v. Morewood, 3 East. 346; Vooyht v. Winch, 3 Barn. & Ald. 662.) It is not sufficient that the particular fact or title is put in issue. It must be tried by the jury, and constitute the basis and foundation of the verdict. It must be relevant and material, and unless specially found must have been necessarily passed upon by the jury. (Burt v. Sternburgh, 4 Cow. 559 ; Gardner v. Buckbee, 3 Id. 120.) There is nothing in this case showing that the verdict turned upon the question of the capacity of the plaintiffs’ ditches, and it is a reasonable inference, from the evidence, that the issue upon that point was entirely disregarded. It was not necessarily considered, and as the verdict is general, its effect is limited to such issues as necessarily controlled the action of the jury. Upon the question of the capacity of these ditches the jury could have found for the plaintiffs, and still justly and properly concluded that they were not entitled to damages. To hold that upon such a question the verdict is conclusive of the rights of the parties, would, we think, be a plain perversion of the law.
The view we have taken of the case renders it unnecessary to consider any other questions discussed in the briefs of counsel.
Judgment affirmed.