PETITION EOR REHEARING.
On petition for rehearing, Beatty, C. J., delivered the following opinion, which was specially concurred in by Mr. Justice Johnson:
There is a petition for rehearing in this case in which two principal points are urged. The first is that the counsel for respondent, on the argument of the case, did not make or rely on the point that no exceptions were taken in the Court below to certain instructions, in the giving of which the appellant contends error was committed.
We believe no such ground was taken in the oral argument, and it- certainly is not alluded to in respondents’ brief.
If we could see that appellant lost any advantage by this admission of respondent, we certainly should not hesitate to grant the rehearing. But if we were to grant such rehearing, certainly at the next trial or argument of the case the respondent would raise *523the point, and the result would be the same. When the petition in the case was first filed, the Court made known to counsel for respondent that if there was anything in the record showing that the charge had- been excepted to at the trial in the Court below, but, had been omitted by some oversight from the transcript sent to this Court, we would not hesitate to grant the rehearing. . Eor in that case had the objection been raised on the hearing of the case in this Court, the appellant might have asked for a continuance, with leave to amend the record.
Rut we now learn that the record does not show that any exception was taken at the trial of the cause; but in lieu thereof the appellant produces the certificate of the District Judge, showing that in fact the appellant did object to the instructions given at the instance of the respondent; did except to the ruling of the Court', in giving them; that the exception was allowed, and the clerk, directed to note the exception, which however he omitted to do.
The appellant contends that under these circumstances, if a-rehearing is granted, he can procure an amendment of the record in the Court below and bring up a transcript showing the exception.
If it would be proper for the Court below to make the amendment as suggested, then appellant should have a rehearing. If such amendment cannot be legally made, then no rehearing should be allowed on this ground.
Our statute, in regard to exceptions, provides in eifect (we give the substance and not the words of the Act) that when an exception is taken in the progress of a trial, it shall be written out by the party excepting, or if he requires it by the clerk, and settled or corrected forthwith, or the Judge may note it in his minutes and afterwards settle it in a statement of the case. The correct practice is immediately to settle the exception and have it signed by the Judge forthwith; for the Judge himself to make a short minute of the same, and afterwards have it drawn up in regular form and signed during the term at which the case is tried; or else for the appellant to make his statement on motion for new trial, or on appeal, as the case may be, and have it settled within the time and in the manner prescribed by law. If the clerk should make a minute of the exception under the direction of the Court, doubtless *524it would answer the same purpose as if the Judge made it. Rut certainly a Judge is more capable than a clerk to note the exact point of the exception and make such memorandum as will, after the trial is over, enable him to settle the bill correctly. If there is an entire failure to make any note of an exception taken, either by the Judge or his clerk, and the term of Court expires at which the case was tried and judgment rendered, we do not see by what authority the Judge could afterwards settle or make a bill of exceptions showing the fact. ■ He might settle a statement even after the term if made within the time prescribed by law. The general rule is that after judgment and the expiration of the term, the Court loses jurisdiction of the case for most purposes. It may correct its judgment in all matters of clerical mistake, and in some other particular matters, even after the expiration of the term; but such .corrections depend not on the memory of the Judge, but on some written evidence or memorial connected with the case. It is not •.thought best to trust to the recollection of the Judge in such cases.
Counsel for petitioner seems to have examined the authorities in ¡regard to amendments of records, and settling bills «of exception. He has found none, or at least we have found none in the various .authorities referred to, where a bill of exception has been sustained .that was settled by the Judge who tried the cause, after the expiration of the term at which the judgment was rendered, upon his simple memory of what occurred at the trial, and when no note or memorandum was made at the' time of the exception. Nor do we 'find .a single case in which it has been held that a Judge, after the expiration of a term at which final judgment has been rendered, could, on his simple recollection of what had occurred at the trial, amend the record so as to cure any fatal defect therein. Such amendments may be made before final judgment, or before the end of the term at which final judgment is rendered. They may be made after judgment, and after the expiration of the judgment term, if there is anything to amend by. So too, if the record is mutilated -after judgment, the Court may restore it to its former condition. Upon all these points 'the diligence of counsel has found authorities, but they do not conflict with the views above expressed by this Court, in regard to amendments of the record.
*525■Under onr code there is no necessity certainly for a departure from the well established practice in this respect. If an exception is actually taken at the trial, but not drawn up in form for the Judge’s signature, and no note of it is made either by the Judge or clerk, still the party dissatisfied with the judgment has a right to make his statement on motion for new trial, or on appeal; and in that statement he • may show any exception that he really took during the trial, although there be no note of the same. For the purpose of this statement the Court still retains jurisdiction of the case until it is finally settled, or the parties have lost their rights by some laches, although the term may have expired.
After the statement is once made and settled, we think the Court below has lost jurisdiction over the case, and no addition can be made thereto.
The remaining point on which petitioners rely for a rehearing, relates to the view taken by one member of this Court in regard to the sixth instruction, given by request of respondents. Petitioners’ first proposition oh this subject is, that the Indians themselves who built the old ditch and dam alluded to, in the opinion of the Court, 'had no right to the water, and therefore none could be transferred to a third party. The ground assumed is, that the diversion of water for the mere temporary purpose of stranding fish, is not converting it to a useful or profitable purpose, and -therefore the party thus diverting it acquires no rights. Had the water been diverted by the Indians for the mere purpose of catching fish upon one occasion, this position might have been right. But as I understand the testimony, it was a permanent diversion of the water, so as to run it over flat meadows, thus enabling the Indians at any time to catch fish among the grass of the meadow-lands, which they could not catch whilst the waters were confined in a narrow channel. I cannot see but that it is just as legitimate for an Indian to turn water over meadow-lands, to enable him to catch fish for his subsistence, as for a white man to turn it over the same land to increase the growth of grass. .
But it is said there is no proof that the defendants have purchased from the right Indian. There is no proof that the same Indian or Indians who built the dam and ditch sold the privilege *526to respondents. That if any sale or transfer could be made, it must be made by the tribe and not by individuals, etc.
According to my ideas of the law, it makes no difference whether the right Indian, the wrong Indian, or no Indian made the transfer to respondents. The question is: Did the right to repair that old Indian ditch exist at the time it is contended by appellant that respondents did wrongfully repair the same ?
If the Indians (the Indians who built the ditch and dam) had the right to repair the same, then according to my views the person who got possession of the land through which the ditch passed had the same right, even though that was acquired by a naked trespass.
To illustrate: B owns lower farm; A has the oldest location and appropriates just half the water. B appropriates only what is left after A is supplied, but would be able to appropriate all the water of the creek if A did not first use it; and whenever A fails to use it he does appropriate all. So that he has in effect a right to all the waters of the creek except in so far as the same are appropriated by A. Now whilst A is thus appropriating half the water on the creek on his farm, C, a mere naked trespasser, expels A from his farm, and so continues to use just half the water as A had previously done, without any change in the ditch or dam; yet it will hardly be contended that B would have any right of action against C. I apprehend the only party who could, under these circumstances, maintain an action against C would be A, who was ousted. Suppose again, whilst C is in possession the dam breaks away, so that all the water for a few days passes down the creek and is used by B; could B maintain an action as against C for repairing the dam ? I think there is hardly a question but that any lawyer would answer this in the negative. Again: suppose the upper dam breaks away twenty-four hours before he expels A, and he upon getting possession immediately repairs the dam; is there in such case any cause of action on the part of B against C ? After mature reflection, I think there would be none. And the case under consideration is, in my mind, precisely analagous to the one last supposed. If there was a right existing in any person or persons to repair that ditch, I apprehend the plaintiff had no cause of action for such repairs. It *527was not a legitimate inquiry whether the repairing was done by the right man or the wrong one.
There was no trespass committed on the lands of appellant. If any act done off of his land only turned the water' where of right it belonged, it might be an injury; but it was no legal damage to plaintiff — it was damnum absque injuria.
With respect to the position that the appellant was the first appropriator of the creek, and therefore had a right to have the water flow in its natural channel, and as a corollary the right to remove any obstructions in the channel, we think that point fully settled when this case was first before us. (See this same case, 2 Nev. 274.)
We do not feel disposed to review a decision which has gone down to the Court below and been acted on. Even if we could go into the review of a case which has been decided and acted on, we do not think that anything has been shown calculated to change our view's on that point. Whilst the writer of this opinion has endeavored to express the views of the Court in regard to the first point noticed in this response, he only expressed his own views as to the second point.
On that point he stands alone in the first opinion in this case, and only intends herein to express his individual views.
Rehearing is denied.
Opinion by
Johnson, J.The authorities cited by Attorney-General, General Clarke, of counsel for appellant, all tend to maintain this one proposition: that Courts may, and sometimes do, permit amendments of their records after adjournment of the term in which the trial or other proceeding was had. I accept this as a proper statement of the law, although I know that the reverse rule has oftentimes prevailed in Courts of high authority with the profession; and probably a precedent of this Court shown by its rulings, at least in one case, would forbid an amendment of the character now sought to be made in the District Court records.
In Bowers v. Beck et al., 2 Nev. 189, an amendment was made by the District Judge to a bill of exceptions allowed by him within *528a few days after its allowance and the adjournment of the term, by striking out a certain statement which had no existence in point of fact; and thereby made the hill correspond to the truth. The case was a very striking one indeed, and one which, if Courts could ever allow an amendment after the expiration of the term, called for the exercise of that authority, as will be seen on an inspection of the reported case.
The attention of the Court was called to these facts before argument on the appeal, and the part so stricken from the bill of exceptions was restored, and upon it the case heard and determined, although one of the Judges (Beatty) intimated that perhaps under that state of facts a bill of exceptions might be corrected; and another of the Judges (Brosnan) seemed to disapprove of the general principle that Courts, after adjournment of the term, lost jurisdiction over their orders and judgment for purposes of amendment. But the action had therein, in refusing the amendment, I am not willing to accept as a precedent governing in similar cases, nor can I give sanction to the doctrine that Courts and Judges lose all power and jurisdiction over their orders or judgments after the expiration of the term in which they may be made and rendered, without giving full consideration and weight to the exceptions which should be made in the application of the rule. In fact when we turn to the books, in search for the grounds upon which the rule has been maintained, we discover that in part it has no present existence, consequent upon the changes wrought in judicial systems and practice; whilst in other particulars it is upheld by statutes and rules of Court having no application with us. And indeed, in the long course of judicial decisions, the rule has become so far relaxed and the exceptions extended that the proposition now partakes more of the qualities of an exception to the general rule than the general rule itself. Wherefore I conclude that in the matter of amendment of Court records, the question should be treated as one of legal discretion rather than jurisdiction solely; that whilst the power is not unlimited, neither is it absolutely restricted to the particular term, but may be exercised within the bounds of a legal discretion, whereof the subject matter of the amendment and the circumstances under which it is allowed constitute the only test. To *529this extent probably the learned counsel and myself do not disagree, 'therefore let us apply these rules to the case in hand.
The statute (Sec. 188, Prac. Act) defines “ an exception to be an objection taken at the trial to a decision On a matter of law * * * in the charge to the jury.” “ Section 189. The point of the exception shall be particularly stated, and may be delivered in writing to the Judge, or if the party require it, shall be written down by the clerk. When delivered in writing or written down by the clerk, it shall be made conformable to the truth, or be at the time corrected until it is so made conformable. When not delivered in writing or written down as above, it maybe entered in the Judge’s minutes, and afterward settled in a statement of the case.” The affidavit and certificate filed in support of the petition shows that a certain instruction “ was excepted to at the trial, that it was allowed by the Court at the time the instructions were read to the jury, and the clerk ordered to enter the same.” We are not advised as to where this particular entry, ordered by the Judge, was to be made, but from the usual practice of District Courts in having their clerks keep minutes of their proceedings, we presume that the entry was intended to be in the minutes thus kept by the clerk. The fact of such exception being stated, the direction of the Court to the clerk, and his neglect to make the entry, are the grounds upon which General Clarke claims a rehearing.
But the showing thus made, the earnest and labored argument of counsel, and citation of numerous authorities, all stop short of the real point to be considered now. That is: Did the failure of the clerk to make such entry deprive the party of any substantial right, and if it had been done would the transcript on appeal necessarily have shown the exception ? Eor if the entry had been made in the minutes, and yet could not of itself be introduced into and become a part of the record on appeal, most clearly his neglect so to do occasions no injury to appellant of which he can complain.
Admit that it was the duty of the clerk when directed by the Court to note the exception in his minutes, although the statute does not contemplate such a mQde, it would not follow as a consequence that the entry would appear in the transcript; for the rule is well settled that exception cannot be shown by such entries alone. *530(Gunter v. Geary, 1 Cal. 462; Johnson et al. v. Sepulveda, 5 Id. 149; Castro’s Executors v. Armesti, 14 Id. 38; People v. Empire G. & S. M. Co., [No. 1372] Supreme Court, Cal., Oct. Term, 1867.)
Although, on the argument of a motion for a new trial reference may be had to such minutes, yet on appeal, where there is no formal bill of exceptions taken at the trial, it can be brought -up only by means of a statement; therefore if the clerk had made the entry as directed, it would have been of no avail as to the matter in question, and equally so would have been the proposed amendment, if appearing on a reargument of the appeal. It would not help appellant’s case in the least, and therefore can furnish no sufficient grounds for the application.
The same distinguished counsellor, in urging the matter of his position, complained that the decision of one of the Justices turned upon a point not denied as involved in the record, yet which was not suggested by opposing counsel on the argument.
This perhaps is true, and if the point could be available to appellant on a further hearing, might perhaps be a sufficient reason to grant his request; but with the views already expressed on the point, it could serve no beneficial purpose to allow it. And further on this point, chiefly in response to matters suggested by the other counsel for appellant. It rests with appellant to show affirmatively the error complained of in the Court below. The position of respondent is different. His relation to the appeal is .purely defensive. The presumptions are all in favor of the judgment of the lower Court, and by such affirmative showing of error in its rulings or judgment, can it be successfully overthrown. If the errors complained of be wholly or in part the giving or refusing instructions, as the case might be, to which ruling appellant has excepted at the proper time, it is not enough to show such instructions were given or refused according to the facts, but furthermore that the party injured by such ruling properly excepted thereto; for it is not an error of the lower Court which can be removed here, unless such exceptions were taken. The several means by which these exceptions may be brought up has been already shown, and whilst the fact that such exceptions were stated at the trial is *531asserted, it is not pretended that any of the statutory methods have been employed to bring up the evidence of such fact.
But ij; is insisted that respondent has waived the necessity of any showing of such fact by record evidence, in treating the case on motion for new trial as if the exception had been properly taken. Concede the law of counsel’s proposition; wherein do we ascertain the fact as stated ? Neither the affidavit of the one counsel or the certificate of the Judge show such fact; whilst the statement and records are equally silent in relation to any such matter, else perhaps this point of inquiry at the time would be of less moment. We cannot follow counsel outside of the record to supply evidence in aid of their law propositions.
On another point — that “ the verdict and judgment are not supported by the evidence I see ‘no sufficient reason to change the views expressed in my former opinion, nor do I conceive it is necessary for anything which is before us on this appeal to state my views as to the Indian title.
I concur in refusing a rehearing,