delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover damages, arising from an irregularity *492of the flow of water to the plaintiffs’ dam and ditches, on Alder Creek, caused by a dam erected by the defendants on the creek above. The right of the prior appropriator of water to recover damages for such an injury was settled by this Court, in the case of The Phœnix Water Co. v. Fletcher (23 Cal. 481).
At the trial, the Court excluded the evidence offered by the plaintiffs, to show that the irregularity of the flow of water was a material injury to them, as in consequence of such irregularity they lost their customers, who refused to purchase water from them. In the case above referred to, it was held that a mere temporary or trivial irregularity in the flow of water, such as does not cause actual injury to the proprietor below, would not amount to an actionable injury. The question will turn, in such cases, upon the nature and extent of the injury. In such cases, evidence of the kind offered by the plaintiffs, was clearly admissible, as showing that the damage to the plaintiff was not trivial or temporary, but of such a character as to cause actual and serious injury to him. More pertinent evidence to prove that fact, could hardly be produced. The Court, therefore, erred in excluding it. The fact that the defendants are miners, and hold the water back, causing it to flow irregularly to the plaintiffs, who are prior appropriators of the waters of the stream, does not take the case out of the rule laid down in the case of The Phœnix Water Co. v. Fletcher.
The judgment is reversed, and the cause remanded for a new trial.