delivered tbe opinion of the Court, Rhodes, J., Sawyer, C., J., and Croceett, J., concurring:
This is an action founded upon the 249th Section of the Practice Act, which defines a nuisance, and provides remedies therefor. The plaintiffs allege that they are the owners of a certain mining claim, situated on the north side of Indian Cañón in Placer County, which mining claim cannot be worked without the use of the Canon, as an outlet for water and tailings.
That the grade of the Canon is light, and that the defendants have erected and are maintaining a dam across the Cañón, at a point below their claim, which dam obstructs the flow of water and tailings down the Cañón, to such an extent as to render the working of the plaintiffs’ claim impracticable.
The defendants in effect, admit the erection of the dam, and its effects upon the work of the plaintiff's, to be as alleged; but deny that the plaintiffs own, or aré entitled to work the ground in question, and to the contrary allege that the ground is in fact, a part of their claim, which is older than the pretended claim of the plaintiffs is alleged to be, and is, what is called a Cañón claim, which according to mining custom embraces all the ground lying in the bed and banks of the Cañón, extending to the bedrock on either side as high as the water line; and that the dam was erected for the purpose of enabling them to work their claim, which as they alleged cannot be worked without it.
'In view of these issues to enable the plaintiffs to recover, it should have appeared at the trial: 1st. That the plaintiffs owned the ground claimed by them. 2d. That the dam prevented their working it to advantage. 3d. Alternatively that the defendants had no title to the bed of the Canon; or if they had, that their right was acquired *431subsequent to that of tbe plaintiffs, or if prior, that the dam was not needed, to enable the defendants to- work to advantage.
As to the first proposition, the testimony preponderates in favor of the defendants, but still it is conflicting, and so far as the action of this Court is concerned, the plaintiffs’ title must be considered as made out. But the first proposition was the only one which was established by the testimony.
That the defendants had the prior right to mine, and that they could not mine without the dam, cannot be questioned upon the testimony. There was not estimony to the contrary. The verdict is therefore not sustained by the evidence.
Order and judgment reversed and a new trial granted