dissenting.
It is with regret that I find myself unable to agree to the opinion of the majority of the court in this case, and that this dissent becomes necessary. I think the proof clearly shows that the dam as at present maintained is higher than is permitted, either by the act of 1867 (territorial session laws 1867, p. 99; act approved February 6, 1867) or by user to the extent that the statute of limitations will afford complete justification. I furthermore think that it is sufficiently shown that the land of plaintiffs has been overflowed to a much greater extent than before the increase of the height of defendant’s dam, and that a large tract of land which was valuable before is now rendered practically worthless. I do not believe that defendant has the right to construct its dam higher than *788is permitted by law or prior usage in order that when it settles it may be of the proper height. It may require a month or a year to complete the settling process, and during which time plaintiffs’ land is liable to overflow by reason of the increased construction. I admit that the proof as to the exact increase of the height of the dam is not as clear as might be, and that upon another trial that question could be finally put at rest and justice be administered between the parties, and therefore favor remanding the cause in order that further evidence may be produced if the parties can do so.
Fawcett, J., concurs.