This is au action to recover damages for the destruction of an addition to a dam, by means of which the waters of Shady Creek were turned into plaintiff’s ditch, and to restrain defendants from tearing down any other addition that may be made. The defence is, that said addition so torn down was a nuisance to defendants’ mining claim.
The plaintiff’s testimony tended to show the following state of facts, viz: That plaintiff is the owner of a mining ditch cut for the purpose of conveying water from Shady Creek to French Corrall for mining and other purposes; that the right to the use of said waters of Shady Creek was acquired, and said ditch located, as early as 1850; that the water of Shady Creek was turned into said ditch by means of a dam constructed across said creek; that the original height of said dam was six feet, but that, more than five years before the commencement of this suit, plaintiff had raised it from time to time, till it had attained the height of twenty-four feet; that in the month of August, 1863, plain*116tiff added from four to six feet more to the height of said dam; that said last addition was necessary in order to turn any portion of the waters of said creek into said ditch, and that this necessity was caused by the largely increased deposits of tailings in the bed of Shady Creek, which arose principally from mining operations conducted about two and a half miles above said dam, and partly from mining operations conducted upon the claim of defendants, by reason of which water and tailings were discharged into said creek, and flowed down to, and filled up said dam.
The defendants’ testimony tended to prove that in 1853 defendants and their grantors were the owners and in possession of certain mining claims located in the bed and on the banks of Shady Creek, about three fourths of a mile above plaintiff’s said dam; that said claims had been possessed and worked according to the mining customs from the date of their location to the present time; that, for the purpose of working said claims, defendants had a flume constructed above said claims, discharging at the lower end of their said ground; that, at the lower end of said flume, there was, up to 1863, a fall of from five to twenty feet; that in 1863 plaintiff raised said dam between five and six feet; that the bed of the creek was very flat, and in consequence of the raising of said dam the tailings were thrown back upon defendants’ claims, and defendants were entirely prevented from working the same; that said claims were valuable and could be profitably worked before said dam was thus raised; that the raising of the dam prevented their being worked, and that if the height of the dam should be reduced to the point from which it was raised in 1863, said claims could be again worked. Also, that, since the location of defendants’ claims, a large supply of water had been brought from distant streams through other ditches and poured into Shady Creek, above said dam and claims of plaintiff’s and defendants’, and that by means of this additional supply of water the amount discharged into Shady Creek was greatly increased, and that the greater portion of the tailings thus *117run into Shady Creek came from mines and claims far above the claims of defendants.
There was some other testimony, but the foregoing is sufficient to show the real points in contest, and illustrate the theory upon which the case was submitted to the jury. The tendency of the testimony, then, is, that the overflowing of the defendants’ claims with water and tailings, upon which defendants rely to justify them in abating the last addition to plaintiff’s dam as a nuisance, was occasioned by said addition of from four to six feet to the height of said dam, made in 1863; that it was necessary for plaintiff to make this addition in order to enable them, to turn the waters of Shady Creek, to which they were entitled, into their ditch; and that this necessity was principally in consequence of mining done on the stream some two and a half or thr.ee miles above the dam, by reason of which a large quantity of tailings and debris were carried down and deposited in the bed of the stream above said dam, thereby filling it up.
Without particularizing the instructions given and refused, this case was distinctly submitted to the jury upon the theory, that if plaintiff acquired the prior right to divert any portion of the waters of Shady Creek by means of a dam and ditch, and the stream and dam should at any subsequent time, by reason of mining by strangers above, become filled up to such an extent as to make it necessary to raise the .dam higher than it originally was, to enable the plaintiff to continue the diversion by means of its ditches, then the plaintiff is entitled to make additions to the height of the „dam from time to time, as occasion requires, without limitation, and wholly irrespective of the effect of these additions upon the interests of other parties acquiring rights for mining and other purposes on the stream above, subsequent to the original appropriation of the water of the stream.. We think tire principle thus broadly stated wholly inadmissible. The plaintiff is undoubtedly entitled to protection to the full extent of the right acquired by virtue of its prior appropriation of the waters of Shady Creek. The plaintiff appro*118printed a portion of the waters of Shady Creek, and diverted it by means of a dam and ditch sufficient for the purpose at the time, in the natural condition of the stream as it then existed. But it does not follow, as a legal proposition, that plaintiff thereby acquired the right to raise its dam higher and higher, as occasion might require, to obviate obstructions to its use in the manner originally appropriated, occasioned by physical changes in the condition of the stream not anticipated, whether arising from natural or artificial causes. The question, what is the extent of the right originally acquired by plaintiff, to which all subsequently acquired rights must be subordinate, is one of fact for the jury. The dam, as originally constructed, was six feet high. Before any other rights had been acquired in the waters of the stream, or in the banks, or the land adjacent, the plaintiff, undoubtedly, under the customs of the country and recognized law of the land, was authorized to appropriate the waters of Shady Creek for mining purposes, and to acquire a right to construct a dam and employ other means sufficient in the condition of the stream, as it then existed, to enable it to control the waters appropriated for the uses contemplated. How far great possible physical changes might then he anticipated and provided for by extending the claim, it is not now necessary to determine. But suppose the plaintiff appropriated the waters, and constructed its ditch and dam amply sufficient, under the condition of the stream and the country as it then existed, to make it available, and acquired a right to appropriate and use said water in the manner adopted and to the extent of the appropriation, this would not prevent other parties from acquiring rights in the surplus water, or in the bed and hanks of the stream, or in the adjacent lands, to any extent which should not interfere with the rights before acquired. And, when the rights of the subsequent appropriators once attach, the prior appropriate!' cannot encroach upon them by extending his rights beyond the first appropriation. In this case the plaintiff appropriated the waters of Shady Creek, constructed its *119ditch and.dam for the purpose of conveying it away for the uses contemplated, and the mode of use, so far as anything to the contrary appears by the testimony, was sufficient in the then condition of the stream, to enable the plaintiff to enjoy the waters in the most advantageous manner. It does not appear that plaintiff acquired any rights, or made any claim beyond this. If plaintiff’s right was thus limited to the extent and mode of the actual appropriation—and from the mere fact of appropriation and enjoyment to a certain extent, and in a particular manner, no presumption of law arises that the right is more extensive than is indicated by the actual appropriation and mode of enjoyment—then the defendants had a right to take up the mining claims on the stream above, and work them in any manner which would not encroach upon the rights of the plaintiff", as they were actually vested and enjoyed at the time of locating such mining claims. To that extent they themselves would be the first appropriators, and being first in time, would be first in right. When the right has once vested in the defendants, the plaintiff" is no more justified, by extending its own claim, or changing the means of appropriation, in interfering with the full enjoyment of the right vested in the defendants, than the defendants would be, in encroaching upon the prior rights of the plaintiff. The fact only appears in evidence that plaintiff first appropriated a portion of the waters of Shady Creek at a certain point, and diverted and enjoyed them all by means of a ditch and dam of a certain height. From these facts alone, as before intimated, no legal presumption arises, that a right had at that time vested to take the water out at a point higher up the stream where a dam would flood defendants’ claims, or by means of a higher dam which would affect the water at said point higher up the stream in the same manner. The legal presumption from these facts alone would rather be, that the right was no more extensive than the present enjoyment. The limitation of plaintiff’s right to its actual enjoyment at the time being assumed, the defendants were authorized to take up *120mining claims on. the stream above, and hold and work them in the condition in which they found them, so far as they could do so without injury to the plaintiff’s prior rights, and after their rights became vested the plaintiff could not rightfully construct a dam at a point further up the stream and thereby flood the defendants’ claims, which were not affected by the full enjoyment of the water rights of the plaintiff, as they existed at the time of the location of said claims, nor could the same results be lawfully accomplished by erecting a dam of much greater height than the old one at the point where it was before located. The latter mode of encroachment is as clearly illegal and wrongful as the former. The defendants located their claims as early as 1853, and, so far as the testimony, or any legal inference arising from the facts which the testimony tends to prove, shows, without in any way encroaching upon the rights of plaintiff as they then existed. The claims were worked for ten years, during which time plaintiff’s dam was raised from six feet—the height at which it was originally built—to the height of twenty-four feet, without in any way flooding or damaging defendants’ claims. If the plaintiff did not, in fact, before the location of defendants’ claims, acquire the right to erect its dam to the height to which it was finally carried in 1863, they could not afterward acquire the right as against defendants without their consent. The fact that subsequent changes occuring in the bod of the stream render it impossible to longer divert the water at the point chosen, without raising the dam, can make no difference. The question is, what was the extent of the plaintiff’s right to affect the stream above by its dam at the time the defendants’ claim was located. Whatever was left unappropriated at that time was open to be appropriated by defendants, and if they by first appropriation acquired the right to work their claims in their condition at that time, the plaintiff was not authorized, by erecting a higher dam, to interfere with that right. The plaintiff may have legal remedies against the parties who filled up their dam and destroyed the use of *121the water right acquired, but the remedy is not by building their dam higher, and thereby destroying the rights of other parties who had located on the stream above, subject only to the right of the plaintiff, whatever it was, as it existed at the time of such location. If the defendants had the right to work their claims in the condition the\ were in when located in 1853, and in the manner in which they did work them, and in which they had enjoyed them for a period of ten years, then the raising of the plaintiff’s dam to such a height as to throw the water and tailings back upon said claims in the manner indicated by the.testimony is a violation of the maxim sic utere two ut alienum non Icedas, and defendants were injured as well as damaged. The right acquired by plaintiff to take the waters of Shady Creek at the point where it was diverted by its dam did not necessarily carry with it the legal right to elevate the dam from time to time, as great physical changes in the condition of the stream might after-wards require, for all future time, without reference to other superior rights subsequently acquired. The exercise of such a right might lead to flooding a large part of the country above.
Undoubtedly, when plaintiff took up the water, and before other conflicting interests had vested, the right to the water carried with it the right to construct such works as were necessary to the full enjoyment of the water. But when it established its works, and fully appropriated the water by means sufficient for the purpose, and used it for a term of years in a particular mode, unless there was something manifesting a more extended right, other parties had a right to suppose that the plaintiff had itself defined the limits of its rights and act accordingly. .
The question to be determined is, to what extent did plaintiff acquire the right to affect the banks and bed of the stream at the point where defendants’ claims are located, before the location of said claims ? This point being ascer*122tained, the plaintiff is not authorized to exceed that limit, to the damage and injury of the defendants.
The case was submitted to the jury upon an erroneous theory, and for this reason the judgment must'he reversed, and a new trial had.
We have said nothing as to the effect upon the rights of the parties of the working of defendants in contributing to the filling up of the plaintiff’s dam and rendering its elevation necessary, for the reason that the Court, in its charge, did not take this element into account, and no question of the kind is presented by the record. We only refer to it, because respondent’s counsel have discussed that portion of the testimony in their brief; but it was not in the case upon the theory adopted by the Court in stating the law to the jury. In the second instruction the Court speaks generally of “ obstructions caused by tailings coming down the stream from mining claims aboveand in the third, of “ tailings coming down said stream from mining claims of other parties above said dam.”
Judgment and order denying a new trial reversed and new trial granted.
Mr. Justice Sanderson expressed no opinion.