Opinion by
Beatty, O. J., Johnson, J.,concurring specially,
Lewis, J.,dissenting.
This was an action brought to recover damages for diverting the waters of Desert Creek, and also praying for an injunction to restrain future diversion of the water.
The facts, so far as they are undisputed, are as follows:
In the summer of 1860 the plaintiff located and occupied a ranch on Desert Creek. In December of that year he commenced the digging of one ditch for irrigating purposes, which was finished the *511following February. Immediately after this ditch was finished he commenced the construction of a second ditch, which was finished some time in March. These two ditches were of capacity to carry about three hundred inches of water, miners’ measure, and this much water was required during irrigating season to properly irrigate plaintiff’s ranch. In March or April, 1861, defendants located and occupied a ranch on Desert Creek, several miles above that occupied by plaintiff. The land, which defendants located was irrigated, or at least had been irrigated, by means of an old ditch which had been dug by Indians many years before. This ditch, it appears, had been used by the Indians for running fish out on the meadow-land for the purpose of catching them. When the defendants were about to locate their ranch the Indians claimed this old ditch, and objected to the location by defendants. Finally the defendants bought out the Indians and made their location.
At the time the defendants made their location, which was, according to what we suppose the most reliable evidence on this point, about the third of March, 1861, there was no water running through the Indian ditch and so down to their meadow-land. Some water was running in that ditch at its head, but it all run over the banks of the ditch or through breaks in the bank near its head, and thus found its way back into the creek. In April however the water was running freely through the Indian ditch for its entire length, and flowing down to and over defendants’ meadow-land.
At this point occurs the first conflict in the evidence of plaintiff and defendants.
The plaintiff attempts to prove that after the defendants made their location, in March or April, they diverted the water from tho natural channel of the creek and turned it through the old Indian ditch on to their meadow-lands. The plaintiff does not attempt to establish this fact by direct or positive proof, but by circumstantial evidence, such as the appearance of the banks of the old Indian ditch showing recent repairs, etc., and by the opinion of witnesses that the old Indian ditch was in such condition in March, 1861, that it could never have flowed water on to the defendants’ ranch without rebuilding or repairing the banks at those points where the water had been wasting away near its head.
*512The defendants, on the other hand, (who were on the stand as witnesses) deny that they made or caused to be made any repairs in the old Indian ditch or dam in the spring of 1861. Their theory of the case is that the w'ater did not floAv' through the entire ditch during the early part of March, because it was obstructed by snow and ice frozen in the ditch. That as soon as the ice and snow melted out of the ditch the water commenced to flow through the entire length thereof, without any interference on their part. They allege that the first repairs they made were in the summer or fall of 1861, when a man was sent up by one of the defendants to repair some breach or deficiency in the ditch. They swear they had never enlarged the capacity of their ditch or raised their dam from the time they bought the Indians out to the commencement of this suit. That the only repairs done on either to amount to anything, xvas to repair damages done by plaintiff after the controversy arose about the prior right to the water in the creek.
Whilst the evidence is very satisfactory that no Avater ran in the lower part of defendants’ ditch in 'March, (or the early part of March) 1861, it is very clearly shown that the water had for several seasons been running at least a portion of every year through the entire length of the Indian (defendants’) ditch. It Avas also clearly proved that it was running in the head of that ditch in March, 1861. But Avhether the water Avas caused to Aoaa' doxvn the ditch in April, 1861, by reason of repairs made in the upper end thereof, by defendants or others in their employ, or whether it commenced flowing through the entire length of the ditch simply by reason of the melting of the snow and ice, and the great abundance of water in the month of April, it is impossible to say. The proof on this point is not satisfactory either Avay, and the probabilities are pei’haps about balaxxced. If we were called on to decide this point, or the weight of testimony, it would be a difficult question to determine.
The case was submitted to a jury, and under the instx'uetioxxs of the Court and such evidence as xve have detailed, the jury found for defendants, The plaintiff moved for a nexv trial in the Court beloAV, and failing in that, appeals to this Court from the order overruling his motion. The first point made by appellant’s counsel is *513that the verdict of the jury was against law and evidence. And to support this proposition he contends that there is no question but that at the time defendants made their location the whole of the water of Desert Creek was flowing in its natural channel, and had been appropriated to the extent of three hundred inches' by plaintiff, and that being so appropriated at the moment of defendants’ location they had no right to divert it. Even admitting this proposition to he a correct one, still the record does not show the facts entitling plaintiff to a new trial. It is very clearly shown, as appellant contends, that at the very day the defendants (respondents) made their location the whole of the water was running in the natural channel of the creek down to appellant’s ranch and ditches. But is not shown that defendants subsequently diverted it. Eorall that we can see in the record, a portion of the water of the creek may subsequently have flowed down defendant’s ditch simply from the melting of the snows and ice. If so, the defendants are not responsible. Nor if the flow on to their ranch was only stopped by the snow and ice, would the plaintiff have been justified, after the snow and ice melted out, to have placed other obstructions in defendants’ ditch to prevent the flow of water therein. As the evidence presents itself to us, this point is not well taken.
■ The next ground of complaint is that the Court gave to the jury contradictory instructions. On the part of the plaintiff, the Court, among other instructions, gave the following:
“ If at the time of the plaintiff’s location and appropriation of the water, if the appropriation by the plaintiff was prior to the location of the land and ditch by the defendants, and the ditch known as the old Indian ditch, and designated on the map as the Simpson & Hall ditch, was in existence, but was. so blocked up, broken or obstructed as not to divert or permanently carry away from the main channel of the stream the waters of the stream ; if in other words, by reason of any obstruction or break in the ditch, or any break in the dam, the water flowing into the mouth of the ditch found its way back to the original channel above the point where Lobdell diverted it, and afterwards the defendants, by themselves or employes, removed the obstructions or repaired the ditch, and by that means prevented the water from returning to the orig*514inal stream, thereby diminishing the quantity of water appropriated by the plaintiff, then they must find for the plaintiff.”
On the part of defendants, the Court among other instructions gave the following:
“ The jury are instructed that a person locating upon a stream and appropriating the water, has a right to have it flow (so far as the natural channel is concerned) in precisely the same manner as it did when he located, and no prior locator has any right to make any such change in the natural channel as will injure subsequent appropriators of the same water.”
Sixth. — “ The jury are instructed that the foundation of the right to water passing over public lands is first appropriation,£ first in time, first in right,’ is the rule. Hence, if you believe from the evidence that either the defendants or other persons first appropriated the waters of said stream to the extent or amount that it was being used by the defendants at the time Of the commencement of this action, and that such appropriation had not been abandoned, you must return a verdict for defendants.”
Seventh. — ££ The jury are instructed that no temporary obstruction of a portion of a dam or ditch, or any temporary obstruction of the latter, will result in any waiver or loss of right to appropriated waters. If, therefore, you find from the evidence that the ditch and dam of defendants existed prior to plaintiff’s appropriation of the waters of Desert Creek, and had been before and has been since said time customarily used in flowing water from said stream on to the land now claimed by defendants; and if you also find that the defendants have never diverted the waters of said stream by any other means but by said dam and ditch, you will find a verdict for defendants ; although it may appear that at the time of plaintiff’s location, by means of some temporary injury to the. dam or ditch, no water at that time was flowing through the defendant’s ditch.”
Eighth. — “ If you, the jury, believe from the testimony, that the dam and ditch of defendants, by which alone they divert the waters of Desert Creek, both existed prior and at the time of plaintiff’s location as they existed at the time of defendants’ location and at the time of the commencement of this action, you will find a verdict for the defendants.”
*515The sixth, seventh and eighth instructions the appellant contends contain matter at variance with the law, as laid down in the seventh instruction given on the part of plaintiff. If these instructions conflict with each other, he contends that the case must be reversed, because contradictory instructions are calculated to mislead the jury.
The rule that a case must be reversed where instructions on a material point are contradictory is not as unqualified as appellant contends for. If one party asks for an instruction which is given by the Court, laying down a rule of law in language too broad and unqualified, and the other side then asks an instruction, which is also given, which qualifies and limits the former instruction, and in some respects contradicts it, if the second instruction contains only sound law, the conflict between the two instructions is not an error of which the party can complain who obtained the instruction which was too broad and unqualified. It might be that this was error injurious to the other side, for the jury might not understand that one instruction was a modification of the other, and might be misled by the too broad language of the first. But they could not do wrong by being governed by the modification. The error could not be complained of by the party who got the wrong instruction, or the instruction not properly qualified and guarded.
Under this rule let us examine the defendants’ instructions, and see if they contain any error. The language in defendants’ sixth instruction, to which exception is taken, is this: “ If you believe from the evidence that either the defendants or other persons first appropriated the water * * * and that such appropriation had not been abandoned,” etc. It is contended that there is no proof in the case that any other person, except uncivilized Indians, had ever appropriated this water prior to the time defendants took up their ranch. That defendants could derive no advantage from their purchase from these Indians, and therefore it was improper to insert the words “ or other persons” in the instruction, because it was calculated to mislead the jury, and induce them to believe that defendants could, by means of a title derived from the Indians, carry back their claim to the water to a date long prior to the time when they themselves first took up the ranch.
*516That this presents a serious question in the case there is no doubt. If the defendants could derive no advantage from the acts of the Indians, then it certainly was improper to have inserted in the sixth instruction the words “ or other persons.” The proof did not pretend to show, or attempt to show, that others than the Indians had dug any ditch or appropriated any water before defendants took up their ranch.
At common law any person, either Christian or heathen, alien resident or non-resident, with the single exception of alien enemies, might bring suit to enforce any civil rights they might possess. It is true that aliens under the common law could not lawfully hold real estate, and transmit the same to their heirs; yet they might buy it and maintain trespass for injuries thereto, or their lessee might maintain ejectment. It has been held in the United States that .an alien might maintain any personal action to enforce his rights to land by him purchased until proper steps had been taken to declare such land forfeited to the State. It has been doubted whether he could maintain a real action, though it is said he might defend himself against such action. (See Fairforth, devisee, v. Hunters’ Lessee, 7 Cranch, 603, where the whole subject is fully discussed.
If then all persons, without regard to nationality, are in this country allowed to maintain any action to enforce their rights to the enjoyment of all property, personal or real, we see no reason why an Indian who has appropriated water on the public lands of the United States might not maintain an action for the diversion of that water as well as any other person. If an Indian could maintain an action for diversion of water, then he certainly would have a fixed interest in the waters so diverted, and a clear right to repair airy temporary damage in his ditch or dams. If then the plaintiff located his ranch, or began the digging of his ditches, at a time when the water was all escaping from the Indian ditch through a breach therein, it would not deprive the Indians of a right to repair that ditch.
But admitting the Indians had a light to repair that ditch, it is still contended that defendants are in no manner substituted to the rights of the Indians, and for two reasons: In the first place, Con*517gress has prohibited all purchases of land from Indians; and in the second place, the fifty-fifth section of our Act in regard to Conveyances reads as follows:
“ No estate or interest in lands, other than for leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized in writing.”
Now it is contended that the appropriation of water and the right to repair the ditches, etc., in which it is carried, is so intimately connected with the use of the land through which the ditches are dug and the water conducted, that no right to use the water can be transferred without also transferring some interest in or power over the land; that this was not done by the Indians in this case, because it is not pretended they made any deed or grant, but merely a parol transfer of their claim on the water; nor if they had attempted to make such deed would it have been available in the face of Congres-, sional Acts prohibiting sales of land by Indians. We do not deem it necessary to go into a critical examination of either the fifty-fifth section of our Act concerning Conveyances, nor of the several Congressional Acts prohibiting the sale of lands by Indians. If the Indians themselves had a right to repair the ditch, we think those who obtained the possession under them had the same right. (See Oatman v. Dixon, 13 Cal. 36.) If, when the plaintiff located his ranch, he located it with a subsisting right on the part of the Indians or any other person or persons to repair this ditch, and throw a part of the waters of Desert Creek on to the ranch now held by defendants, we do not think the right to repair the ditch was lost by the possession passing into other hands. We think the rights of plaintiff and defendants are just the same as they would have been if the Indians had repaired their ditch before transfering possession thereof to defendants. Under these views, there is nothing objectionable in this sixth instruction.
The seventh instruction is objected to because the jury are told in substance if the water flowed customarily through the Indian *518ditch before and after the plaintiff’s location just as it did when this suit was brought, they must find for defendants, notwithstanding some temporary break in the ditch or dam may have thrown all the water on to plaintiff’s premises at the time of his location.
If the sixth instruction was right, this was also right for the same reasons. If right, it is right on the ground that the Indians or those holding possession under them had a right to repair any temporary break in the dam or ditch.
The same observations apply to instruction number eight. Instruction number four asked for by defendants certainly contains only correct legal principles, and we think very clearly expressed. Appellant also complains of an abuse of discretion on the part of the Court, in refusing him the privilege of reexamining several witnesses in regard to the appearance of recent repairs on the old Indian ditch. If our views of the case are right, this evidence would hardly have been material. If defendants had a right to make repairs, it would have availed the plaintiff nothing to have strengthened his evidence on this head. He had already examined several of his witnesses on this point, and we do not think it was any abuse of discretion on the part of the Court to refuse to allow him to go into this question again. It is not strictly in rebuttal of the defendants’ evidence.
Per Johnson, J.This action was originally commenced in Esmeralda County, and upon a trial, judgment rendered for plaintiff. Defendants appealed, and judgment reversed. (2d Nevada Reports, 274.) The case was then transferred to Douglas County, and upon the second trial judgment was for the defendants, and a new trial refused by the District Court; whereupon plaintiff brings this appeal from both the order refusing such new trial and from the judgment.
The notice of motion for a new trial in the Court below states as the grounds therefor the following:
“ 1st. That the verdict of the jury in said cause was contrary to the evidence, and that the evidence therein was insufficient to sustain said verdict.
“ 2d. That the said jury was not drawn and selected nor impanneled according to law.
*519“ 3d. That the Judge erred in giving instructions to the jury asked by defendants.
“ 4. That the Court erred in overruling the objections taken by plaintiff’s counsel upon the trial of such cause, and duly excepted to by plaintiff.
“ 5. That the Court erred in sustaining the objections of defendants’ counsel taken upon said trial, and duly excepted to by the plaintiff.
“ 6th. That the Court erred in allowing the jury to separate and disperse after they had heard a portion of the argument of counsel, and before the same was concluded, and before the verdict.”
The only difference observable in the motion itself and the notice is, that the motion did not include the last or sixth ground, and the fourth and fifth are explained as follows: “ That is to say, the fourth and fifth objections are intended to cover any and all errors of law occurring at the trial and excepted to by the plaintiff.” No affidavit was offered in support of the second ground, and such as were considered on the hearing of the motion can at best be regarded as falling under the sixth and seventh clauses of Section 193, Civil Practice Act, 1861, p. 346. “ Sixth. Insufficiency of the evidence to justify the verdict or other decision; or that it is against law.” “ Seventh. Error in law occurring at the trial, and excepted to by the party making the application.” The grounds of error stated by counsel for appellant, and upon which we are asked to reverse the order refusing a new trial and the judgment, may be grouped under the following general heads: “ First, the verdict of the jury is contrary to law and evidence; second, the instruction given at the instance of the plaintiff and those given at the instance of the defendants are inconsistent, and contradictory, and irreconcilable.” Other points than these, but not specified as grounds of error in the written assignments of counsel, all of which relate exclusively to the ruling of the Court below in rejecting certain evidence offered by plaintiff, claimed to be in rebuttal of defendants’ testimony, were also discussed by counsel on the argument.
The most important questions, perhaps, which counsel for appellant has urged, and those upon which he seems chiefly to rely, *520grow out of certain instructions of the Court, and hence it becomes necessary for us to determine whether or not these instructions can now be reviewed; for it is a rule of universal application, that instructions of a subordinate Court given or refused, will not be inquired into on appeals, unless excepted to at the trial below. (8 Johnson, 495; 1 Wendell, 418; 1 Cowen, 622; 5 Cal. 647; Id. 478; 7 Cal. 38; Id. 423; 2 Bac. Abr. 112, Bill of Exceptions, and cases there cited.)
The settled statement used on the argument of the motion in the lower Court, and embodied in the record before us, comes indorsed as a “ particular history of the proceedings and all the evidence taken and submitted upon the trial.” (Page 2 of Transcript.) The instructions asked by plaintiff were all given, as also were those of defendants, except the first two, which were refused. In no part of the transcript, by bill of exception, minutes of the Court, or otherwise, are any exceptions shown to have been taken by either party to the giving or receiving of any instructions. Nor in fact does the third ground assigned on motion for new trial allege that the errors in giving these instructions were “ excepted to by the party making such application,” as required by Sec. 194 of the Practice Act; and therefore in a measure confirms the belief that no such exceptions were taken at the trial, and were not considered on the motion for a new trial in the District Court.
Instructions given to a jury without objection are presumed to be with the consent of the parties, and such consent is a waiver of any right thereafter to question the correctness of the instruction as applied to the particular case; for, says Burnett, J., in Letter v. Putney et al. 7 Cal. 423, “-a party cannot first take his chances of a verdict upon instructions given or refused without exception, and then afterwards except to the action of the Court upon a motion for a new trial.”
Excluding all inquiry in respect to the instructions, in my judgment, virtually disposes of this appeal, as the further points made for appellant, to which exceptions were duly taken at the trial, I consider to be without merit. A large number of witnesses testified' upon the trial, and in some respects the evidence is conflicting; wherefore, accepting the instructions of the Court below as the law *521governing the case, there can be no just ground for this Court to disturb the verdict. The questions made as to the exclusion of certain evidence, the rulings of the Court thereon being excepted to by the plaintiff’s counsel, are equally untenable. The preferred testimony of the witnesses Rickey, Chase, Lobdell, Smith, and Wheeler, as to the condition of the old Indian ditch, had been quite fully gone into by plaintiff in his opening evidence, and in no just sense can it be held error in the Court below in refusing to allow the same testimony to be repeated in rebuttal.
The statements of Clay in respect to repairs on the ditch were clearly inadmissible as evidence against defendants. Erom this view of the case, it follows that the judgment should be affirmed.