We cannot notice the argument of counsel for appellant as to the sufficiency of the evidence to sustain the verdict, nor as to the question of costs, nor the correctness of the decree for an injunction, because they are not embraced in the grounds of appeal set forth in the statement. (Barrett et al. v Tewksbury and Wife, 15 Cal. 354; Reynolds v. Lawrence, 15 Cal. 359.) Under the rule laid down in those cases, we can only consider the points made upon the instructions given and refused by the Court.
Nor do we deem it necessary to notice in detail the instructions of which the appellant complains. It is sufficient to say, that after a careful examination we are satisfied they correctly present the law applicable to the facts, and to the legal effect of which they are addressed.
As to the instructions asked for by the defendants : The first was properly refused, because it is so broad and unqualified in its terms that it might have misled the jury. As an abstract proposition, even, it is too general, because it ignores entirely the idea of prior vested rights in others, to which the right claimed by defendant might be subordinate; and, as applicable to the particular facts of this case, it ignores entirely the prior rights of the plaintiff, and by necessary *373implication negatives the idea that he had any such rights; thus striking from under it the very foundation. upon which his cause of action rested, although such rights were conclusively established by the testimony.
The second instruction is undoubtedly law, but it had already been twice given in substance, and that was doubtless the reason why it was refused.
The four remaining instructions refused by the Court are founded upon the theory that, in the mineral districts of this State, the rights of miners and persons owning ditches constructed for mining purposes are paramount to all other rights and interests of a different character, regardless of the time or mode of their acquisition; thus annihilating the doctrine of priority in all cases where the contest is between a miner or ditch owner and one who claims the exercise of any other kind of right or the ownership of any other kind of interest. To such a doctrine we are unable to subscribe, nor do we think it clothed with a plausibility sufficient to justify us in combating it.
The judgment is affirmed.