concurring:
I concur in the judgment and in the opinion of Mr. Justice Coleman. The case is of such unusual character that I venture to add some additional supplementary observations. Whether defendants were liable to respond in damages for the injury done to plaintiff’s property caused by the Walker River overflowing its banks during the years 1904 to 1907, ‘ inclusive, has presented for determination intricate questions, both of law and fact, which the court, notwithstanding the aid of elaborate briefs of respective counsel, has found no little difficulty in determining. If the contention of counsel for appellants — that the injury, even if occasioned in the way claimed by respondent, was remote and consequential and for which no remedy in law was afforded — could have been sustained, the necessity for considering other questions would have been eliminated.
It is conceded in this case that the overflows which occasioned the damage were not caused by backwater from the dam. If the dam complained of had raised the water in the river to the top of the banks at the dam, the water level would be 11.42 feet below the bank at the highest point of overflow. The banks of the river at other points of overflow varied from about 4% to 8 feet higher than the banks of the river at appellants’ dam. Respondent’s theory rests upon the contention that the current of the river will be affected above the level of backwater by reason of the deposit of sand and silt due to a checking of the velocity of the current within that portion of the river affected by backwater. It is here we have the conflicting views as to whether this can or cannot *486happen in accordance with natural laws. It is conceded that sand and silt carried in suspension in a stream will not be deposited in the channel unless the velocity of the stream is checked to such an extent that it has not the necessary carrying power to longer hold it in suspension. It is a known law of hydraulics that all portions of a cross-section of a stream have not the same velocity, and this variation in velocity causes some deposit of sand and silt upon the bed of the stream. Plaintiff’s whole case rests upon an application of the known law of hydraulics that a reduction in the velocity of a stream carrying sand or silt in suspension will cause such sand or silt to be deposited on the bed of the channel.
Whether this law of hydraulics is applicable to the facts of this case — that is, whether appellants’ dam can have the effect of decreasing the velocity above the level of backwater — is the question upon which plaintiff’s counsel and witnesses differ in opinion from the opinions of the expert witnesses upon hydraulics. The point I wish to emphasize here, however, is simply that an established law of hydraulics is invoked to prove that the appellants’ dam is the sole cause of plaintiff’s injury, when from the undisputed facts in the case it is impossible that it could have been the sole cause of the filling of the river channel by a deposit of sand and silt, for the reason that other agencies under known laws of hydraulics contributed to a greater or less degree in checking the velocity of the current. The volume of water naturally flowing in the river was reduced by the numerous ditches diverting water from the river upon or above the ranch of plaintiff and above defendants’ dam. Necessarily these ditches reduced the volume of water in the river below, and hence necessarily reduced the velocity of the current. It has been contended, for example, that appellants’ dam was the sole cause of the filling of the river above that dam, and -below the Merritt dam, and that the Merritt dam could not have had any effect in filling the river below the latter dam. The Spragg, *487Alcorn & Bewley dam caused a deposit of sand and silt between the two dams, because it decreased the grade of the river to a level for the distance it caused backwater; the' reduction in grade causing a reduction in velocity. The Merritt ditch caused a reduction in the volume of water flowing below the Merritt dam, and this reduction in volume caused a corresponding reduction in the velocity of the- current. It certainly is immaterial whether velocity is reduced by a cause which-affects the grade or a cause which affects the volume — both contribute to the deposit of sand and silt.
An application of these established laws of nature to the facts of this case illustrate the reason why the opinion of nonexpert witnesses upon the ultimate fact in the case ought not to be permitted. Courts are bound to apply known natural laws so far as they are applicable. A lack of knowledge of known natural laws may cause a witness to form an entirely erroneous opinion as to the cause of a certain effect. The witnesses in this case who testified that the Spragg, Alcorn & Bewley dam was the cause of the overflow were undoubtedly perfectly convinced of the correctness of their opinion and honest in its expression, but the physical facts and known laws of hydraulics are conclusive that those opinions were in part, at least, erroneous.
The long delay in the determination of this case is regretted extremely. Changes in the personnel of the court making necessary a reargument and reassignment of the case, the voluminous record, number, newness, and importance of the questions presented, and an endeavor to harmonize conflicting views, account for a delay in the decison which has been seemingly unreasonable.