dissenting:
I dissent.
This case was originally assigned to the writer for the preparation of the opinion of the court. In view of the position taken by the majority of the court, I am herewith *488setting forth only so much of my opinion originally prepared as I deem applicable to the matters touched upon in the prevailing opinion.
The prevailing opinion in this case rests primarily upon the contention of appellants that it was a physical impossibility for the Spragg, Alcorn & Bewley dam to cause the overflow in question. The principal ground asserted in support of this declaration is the fact that a horizontal line drawn from the crest of the dam would intersect the river bed at a point far below the place where the flood waters broke from the river channel and flowed over the premises of McLeod. However true it may be that the current of a stream will not be affected by an obstruction above a point where a horizontal line passing over the crest of the obstruction would strike the bed of the stream, this rule cannot be strictly applied, and, in fact, will not apply at all, where the stream, as in the case at bar, is one which during certain seasons of the year carries great quantities of silt and sand in its current.
Evidence was introduced in this case of levels taken from the dam up the Walker River, for the purpose of showing that the waters of the Walker River were not affected or raised as far up the river as the point of overflow. Testimony of engineers versed in the subject of hydraulics was introduced, "tending to establish that the dam in question could not affect the river above the point where a horizontal line from the crest of the dam would intersect the bottom of the river. Testimony was introduced to show that this point of intersection was far below the premises of respondent affected by the overflow. On the other hand, testimony was introduced coming from witnesses who had spent many years in and about the vicinity of the property in question, and who had for many years past observed the action of the Walker River, and these witnesses, basing their statement on their observation and experience, testified not only that the bed of the river was filled with silt and sand and debris as a direct result of the dam in question, but that the overflowing of respondent’s premises was *489caused by the dam. In this respect, we find a direct conflict between the testimony of the experts offered on behalf of appellants based on scientific investigation and that of nonexperts based on actual observation and experience.
It is manifest that the jury, having heard both sides of the testimony, were convinced by the latter. Indeed, we believe, as has been well asserted by other courts, that, owing to the impossibility of arriving at precisely accurate results by the use of instruments, running over many miles in extent, involving, as in this case, a great number of stations and the adjustment, taking and registering of levels thereat, and the many different circumstances, explainable and unexplainable, which effect the action of water when obstructed and ponded in running streams, actual tests by observation and experience afforded the most satisfactory testimony upon which to rely in determining the results from such obstructions. (Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243; Brown v. Bush, 45 Pa. 61; Decorah W.M.Co.v. Greer et al., 58 Iowa, 86, 12 N. W. 128.)
In the case of Turner v. Hart, supra, the Supreme Court of Michigan, in considering a similar subject, said:
"Every author treating upon the subject of hydrodynamics acknowledges and points out the difference between theoretical and actual tests, and, in advancing practical rules, modifies the theoretical to correspond as nearly as possible to actual observation and experience. We think the observation and experience of the witnesses introduced by complainants is controlling.when brought in conflict with instrumental measurements, however accurately and carefully taken.”
In the case of Hand v. Catawba Power Co., 90 S. C. 267, 73 S. E. 187, the Supreme Court of South Carolina, in dwelling upon a subject analogous to the one at bar, said:
"According to the testimony of defendant’s engineers, the fall in the creek from plaintiff’s mill to the backwater from defendant’s dam is about 23% feet, and they say that it is a physical impossibility for defendant’s *490dam to have caused plaintiff’s injury. Notwithstanding, there was testimony which reasonably warranted a contrary opinion, and the jury took the contrary view, and found a verdict for the plaintiff, upon which judgment was duly entered.”
The question of the effect of an obstruction on a running stream, and as to the distance upstream within which the flow may be affected, has been one much discussed by authorities on the subj ect of hydraulics. Where conditions are uniform and constant, where the grade is regular and the dimensions are fixed, the rule sought to be relied upon by appellants, by reason of which they claim it to have been a physical impossibility for their dam to have caused the flood, is one which for all practical purposes is invariable. But where conditions are such as those presented in the case at bar, wherein the effect of an obstruction thrown across a running stream is to be calculated, there is no rule, so far as we are able to ascertain from the authorities on this subject, that is invariable or can be definitely relied upon.
The record here, and especially that portion of it wherein the testimony of skilled engineers was produced on behalf of appellants, discloses constantly changing conditions in the Walker River. The measurements and calculations were taken by the establishment of stations at given distances above the dam, and at each station there was found to be change in velocity, change in depth, difference in slope, in width of stream bed, as well as differences in direction and force of the flow. It is by reason of these differences in the fundamental things essential for strict computation that the rule sought to be relied upon by appellants in this case fails, in my judgment, to be applicable.
Prof. Mansfield Merriman, of the department of civil engineering of Lehigh University, in his Treatise on Hydraulics, speaking on this subject, says:
"When a dam is built across a channel, the water surface is raised for a long distance upstream. This .is a fruitful source of contention, and accordingly many *491attempts have been made to discuss it theoretically in order to be able to compute the probable increase in depth at various distances back from a proposed dam. None of these can be said to have been successful, except for the simple case where the slope of the bed of the channel is constant and its cross-section such that the width may be regarded as uniform and the hydraulic radius be taken as equal to the depth.” (Merriman on Hydraulics, 9th Ed. p. 353.)
This learned author, in discussing the subject of the applicability of the rule to streams of varying slope, width, depth, and velocity, emphasizes the impossibility of accuracy under such conditions, even where, as in the case at bar, the stream is divided into reaches, wherein the slope, width, depth, and velocity can be regarded as approximately constant; and in this respect he says:
"Even if this be done, the results of the computations must be regarded as liable to considerable uncertainty. ”
In the case at bar, a greater and even more complicated problem presents itself, in our attempt to enforce the rule sought to be relied upon by appellants. The application of the rule contemplates as a primary condition a minimum of solids in suspension. The record here, in so far as the testimony of many witnesses is concerned, and the photographs admitted in evidence, presents conditions which make the enforcement of the rule and its applicability even more uncertain and unreliable, if not impossible. The Walker River is a meandering stream, much given to cutting and washing, and hence to changing its course and bed. Its source and supply of water are from the snow banks on distant mountain ranges. The amount of water in its flow depends largely upon the supply of snow and its melting condition, the volume of the flow being usually greater during the spring months when the lower snow deposits melt and their waters find a common source in the Walker River. During this season, by reason of this increased volume and the new channels through which it passes to the river bed, and the natural erosive action of the river itself, there is carried in *492suspension great quantities of silt, sand, and general debris. When this water, highly impregnated with soils, is obstructed, the creation of dead water upstream from the obstruction causes a deposit of the solids held in suspension, and this deposit takes place in the order of the specific gravity of the substances carried.
It is generally conceded by all authorities on the subject of hydraulics that the rule sought to be applied by appellants here is one which is attended with uncertainty, except under ideal conditions. The rule is not strictly applicable, except in case of a river or canal of practically uniform width and uniform slope in the direction of the flow.
'Taking into consideration the testimony of the witnesses whose years of experience and opportunity for observation permitted them to testify as they did as to the cause of the overflow being the dam, the jury was warranted in finding, and had substantial evidence before it upon which to find, that, notwithstanding the testimony of the experts whose scientific investigation caused them to testify that it was a physical impossibility for the Spragg, Alcorn & Bewley dam to affect the flow of the Walker River to such a point upstream as would cause the overflowing of respondent’s premises, the dam in question directly and indirectly brought about the overflow and injury to the premises of respondent. As I have already stated, the whole premises, the river, and the various dams ancl obstructions, were viewed by the court and jury, and this opportunity for observation afforded the jury, together with the testimony of the witnesses as to the cause of the overflow which inundated the premises of respondent, was sufficiently substantial to warrant us in applying the rule that though there may be some conflict in the evidence as to the agency which caused the flooding of respondent’s premises, inasmuch as the general verdict of the jury was in effect that it was the obstruction maintained by appellants, the finding in this respect should not be disturbed.
*493In this connection it may be well to observe that, in view of the issues joined in this case, it can make no difference whether the flood which injured respondent was caused as the direct action of the dam maintained by appellants, or whether the same was caused by reason of the filling up of the channel of the river with sediment due to the action of appellants’ dam. The sediment and sand deposited in the channel of the river may have been, and probably was, an intervening agency; yet if this intervening agency was established as the direct result of the act of appellants in enlarging and raising the dam, and if the action of the dam, in conjunction with the action of the sediment, filling up the channel of the river, caused the river to overflow and flood the premises of respondent, then, the dam of appellants being the first wrong done, the consequences, as well as every intermediate result, such as the filling of the channel of the stream with sand and sediment, or the creation of islands or bars or the changing of the current, are to be considered in law as the proximate result of the first wrongful cause.
It cannot be denied that there may be occasions where the rule of physical impossibility would be manifest, and in this respect our attention is directed to the case of Lowery v. San Joaquin & Kings River Canal & Irrigation Co., 134 Cal. 185, 66 Pac. 225. Appellants, in their brief and oral argument, lay much stress upon the force and effect of this decision as being applicable to the case at bar, but there are vital distinguishing features. In the Lowery case, supra, the land inundated was low, and part of it was designated as swamp and overflow land. Before the erection of the dam in the San Joaquin River, it had been constantly subjected to overflow in wet seasons. In that case, it appears, there was a total absence of any direct evidence that defendants’ dam caused the overflow complained of. That it was a physical impossibility for the dam complained of to have'caused the overflow in that case was testified to by experts produced by *494the defendant company, and was practically admitted by the expert offered on behalf of plaintiff. The court in its decision especially comments on the fact that plaintiff’s expert not only admitted the insufficiency of his data, but nowhere testified that the dam did affect or could have affected the waters of Four Tree slough, the channel complained of.
There is another element in that case which distinguishes it from the case at bar. We find in the decision the statement:
"For more than five years prior to the flooding of plaintiff’s land, the dam was continuously maintained at its present height.”
Moreover, that case presented facts which established without conflict that plaintiff’s land was constantly subject to overflow at high water. In my judgment, the case affords nothing that would assist us in the solution of the problem at bar.
Nor are we afforded any assistance by the case of Hoffman v. Tuolumne County Water Co., 10 Cal. 413, referred to in appellants’ brief.
It is the contention of appellants that inasmuch as they and their predecessors had the legal right to construct and maintain the ditch known as the Spragg, Alcorn & Bewley dam, and to erect and maintain the dam and divert the waters for the purpose of irrigation, they cannot be held liable in this case. They further contend that no direct trespass being alleged, and there being no allegation that the dam directly overflowed the land, they can be held liable only in case of negligence; they contend further that no negligence was established by the evidence, hence no liability attaches.
The general rule applicable to this phase of appellants’ contention is that every man has a right to have the use of the flow of water in its natural channel in his own land. In using it, however, the owner must so divert the water and so apply it as to work no material injury or annoyance to his neighbor, either above or below him. It is the duty of a party erecting an obstruction in a natural *495stream, especially where there are adjoining owners whose lands and premises might be subject to new conditions arising in the stream by reason of his obstruction, to notice not only the effect of his obstruction at the time of its erection, but its effect at all seasons of the year. Where it is a known fact that the flow and quantity of water in a stream vary with the seasons of the year— the spring bringing its freshets, and the fall bringing its scarcity of water — such condition should be expected and anticipated by one seeking to obstruct the flow. It has been held by eminent authority that it is the duty of one who attempts by means of a dam or obstruction to impound the flow of a stream to calculate the probable effects of the dam in the several seasons of the year on the property of his neighbor above, as well as below, his obstruction. " A neglect to use the necessary precaution, ” says the court in Bell v. MeClintock, 9 Watts (Pa.) 119, 34 Am. Dec. 507,"or a miscalculation of its effects, where it works an injury to another, may be compensated in damages.” And the court, in this respect, further lays down the rule:
"When, however, the injury arises from causes which might have been foreseen and avoided, as in the cases of ordinary periodical freshets, it is but right that he whose superstructure is the immediate cause of the mischief should bear the loss. ■ In that case there is the concurrence of negligence with the act of Providence, which, as it is seen, is the criterion of liability. ”
To the same effect we find the cases of McCoy v. Danley, 20 Pac. 85, 57 Am. Dec. 680; Talbot et al. v. Whipple, 7 Gray (Mass.) 122.
In the case of Hagge et al. v. Kansas City S. Ry. Co. (C. C.) 104 Fed. 391, certain pilings used by the railway company in the construction of its bridge across a watercourse were, after the completion of the bridge, cut off and left at such height above low-water mark as to occasion an accumulation of debris which obstructed the natural current of the river and thereby caused the water to run over the natural bank onto adjoining lands. The act of *496the railway company in so cutting off and leaving the pilings, with the consequent damages, was held to constitute negligence. In that case, the court, having the matter under consideration on demurrer, said:
"If the defendant is maintaining such nuisance, and this occasions the overflow of the water, flooding the complainants’ land, and injuring the crops, it presents ground of action.”
To the same effect is the case of Brink v. Railway Co., 17 Mo. App. 177.
In the case of Hardin v. Ledbetter, 103 N. C. 90, 9 S. E. 641, it was held that where the owner of a mill-dam removed his obstruction, thereby causing the accumulation of mud and debris to pass downstream and fill up the mill-pond of another to such an extent as to back the water to the injury of the party who removed his obstruction, the latter could recover damages caused by the backwater.
To the same effect, we find the case of Cowles v. Kidder, 24 N. H. 364, 57 Am. Dec. 287.
In the case of Cline v. Baker, 118 N. C. 780, 24 S. E. 516, it was held that if a dam and pond in a stream were the direct cause of the injury, although such injury was aggravated by other causes over which he had no control, the defendant would still be liable. And the same is the holding of the court in State v. Holman, 104 N. C. 861, 10 S. E. 758.
This rule is especially applicable to the case at bar, inasmuch as the record tends to establish that the Spragg, Alcorn & Bewley dam caused the bed of the river to be filled with silt and debris which formed bars and islands, which in turn, as a natural consequence, affected the flow of the stream. The formation of these bars and islands is established not only by the testimony of many witnesses, but by the photographs admitted in evidence and found in the record of the case.
In his work on Waters and Water Rights, Mr. Farnham says:
"The riparian owner is not bound to keep the channel *497of the stream free from debris which may find its way there naturally, and is not liable for injury to upper property owners by the fact that its accumulation in the stream sets the water back over the boundary line. But, in erecting artificial structures in or across the stream, he is bound to take notice of the liability of such material to be impeded by the obstruction and so become a menace to upper property, and he will be liable in case he builds his structure in such a way that it will necessarily cause drifting material to dam the water back, or in case he fails to remove the material after he sees that it is being piled up so as to form' a dam.” (Farnham on Waters and Water Rights, vol. 2, sec. 570.)
The assertion of the learned author in this respect is supported by eminent authority. I deem it especially applicable to the conditions presented by the record in this case, for, as I have already stated, the obstruction in the Walker River known as the Spragg, Alcorn & Bewley dam was in the first instance but a slight obstruction, thrown partially across the bed of the stream. As years passed, the ditch known as the Spragg, Alcorn & Bewley ditch, into which the dam was intended to divert the water, filled more or less with sediment and debris, and, as such condition progressed, the dam in question was raised and enlarged, and its effect was to impound such silt or sediment or debris as naturally passed down the channel, thus filling up the natural bed of the river. We find the doctrine asserted here supported by abundance of authority: Blizzard v. Danville, 175 Pa. 479, 34 Atl. 846; Ames v. Dorset Marble Co., 64 Vt. 10, 23 Atl. 857; Schuylkill Navigation Co. v. McDonough, 33 Pa. 73; Athens Mfg. Co. v. Rucker, 80 Ga. 291, 4 S. E. 885; Kroeger v. Twin Buttes, 13 Ariz. 348, 114 Pac. 553, Ann. Cas. 1913e, 1229.
We are referred to the cases of: Fleming v. Lockwood, 36 Mont. 384, 92 Pac. 962, 14 L. R. A. n. s. 628, 122 Am. St. Rep. 375, 13 Ann. Cas. 263; Proctor v. Jennings, 6 Nev. 83, 3 Am. Rep. 240; Lapham v. Curtis, 5 Vt. 375, 26 Am. Dec. 310; Hoffman v. Tuolumne County Water Co., supra.
*498While the rule laid down by the courts in these cases might be applicable to a different set of circumstances than those presented in the record, nevertheless it has been held in many cases that a direct injury may result and be actionable from the construction of a dam across a stream by which the stream is caused to be filled with sand and to overflow the premises of upper landowners. (Avery v. Vermont Electric Co., 75 Vt. 235, 54 Atl. 179, 59 L. R. A. 817, and note, 98 Am. St. Rep. 818; Winchell v. Clark, 68 Mich. 64, 35 N. W. 907; Morris v. Commander, 25 N. C. 510; Haas v. Choussard, 17 Tex. 588; Masonic Temple Assn. v. Banks, 94 Va. 695, 27 S. E. 490; Miller v. Stowman, 26 Ind. 145; Coloney et al. v. Farrow, 91 Hun, 82, 36 N. Y. Supp. 164; Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S. W. 370; Moffet v. Brewer, 1 G. Greene, 348; Hillv. Ward, 2 Gilman, 285; Brown v. Bowen, 30 N.Y. 519, 86 Am. Dec. 406; Broadway Mfg. Co. v. Leavenworth T. R. B. Co., 81 Kan. 616, 106 Pac. 1034, 28 L. R. A. n. s. 156, and note.)
The prevailing opinion holds as error the action of the trial court in permitting witnesses to give their opinions as to what caused the river to fill with sand and as to what caused the overflow on the McLeod land; and appellants direct our attention to the testimony of respondent’s witnesses, Harry R. Warren, William Rallens, Charles T. Martin, T. G. Nichol, G. H. Baker, J. C. Mills, Frank Feigenspan, James Nichol, Chas. McLeod, G. B. Waldo, and Angus McLeod. The first objection raised to this class of testimony is that none of these men had any particular scientific training or instruction on the subject of hydraulics or the effect of dams upon the current of streams or the deposit of sand and sediment in streams. It is asserted by appellants that while some of these witnesses were more or less conversant with this particular dam and the river and -the McLeod ranch, and were in a position to observe what took place, others did not know the fall or grade of the water through which the river flowed, and were not present when the river overflowed and did not know where it overflowed, and were not familiar with *499other obstructions between the point of overflow and the Sprigg, Alcorn & Bewley dam.
To the witness Harry Warren was propounded this question:
" Q. What is or was the cause of the river filling there with debris as you have described it above the Spragg, Alcorn & Bewley dam in the river to the point you have described?
"Mr. Treadwell — We object on the ground that it calls for the conclusion of the witness, and not for any fact; and it takes from the jury the determination from the facts of the ultimate question in the case. We object on the further ground that, in as far as it asks for the opinion of the witness, the witness has not qualified and is not shown to be an expert on any subject that would permit him to give his opinion to the jury.
"The Court — Gentlemen, before the noon recess I made a ruling on the matter of the admissibility of certain testimony here, which I have been considering, and which I now retract, owing to the fact that, this witness, Mr. Warren, has shown himself, to the satisfaction of the court, by his testimony to be an expert. His knowledge and experience during the fourteen years that he has lived on or near the Walker River, and his familiarity with the river, dam, ditches and sloughs, concerning which his testimony has been given, has sufficiently qualified him to give evidence as to the filling of the river with sand. The rule of law is,- where one is qualified to testify to certain facts, he may give his opinion as an expert. There are certain facts which the witness is supposed to have peculiar knowledge of, and for that reason the objection is overruled.”
The witness William Rallens was interrogated, over the objection of appellants, as to cause of the sand and sediment in the river, and as to what caused the river to overflow its banks. The record is as follows:
" Q. Do you know how the water of the river came to overflow on those places along the ranch, as you describe it? A. I do.
*500" Q. What was the cause of the overflow on the McLeod place? A. By building up the dam, causing sand and sediment in the river, and causing the river to overflow its banks.
"Q. What dam do you refer to? A. The Spragg-Bewley-Alcorn dam.”
The witness Charles T. Martin was interrogated:
"Q. What was the cause of the damage to the land? A. Well, the cause was, the river bed was full of sand, and the water had to -flow out some place?
"Q. Do you know the cause of the filling of the river with sand? A. Yes.
"Q. Now, what was the cause? A. Well, from my experience being on that river, I know that dams cause the sand to form in the river.
"Q. Now, as to this place, the particular place known as the McLeod place, what particular dam do you have reference to as having caused the deposit of sand? A. I have reference to the Spragg-Bewley-Alcorn dam.”
The witness T. G..Nichol was interrogated, and testified:
" Q. Do you know what caused the deposit of sand in the channel of the river above the Spragg-Bewley-Alcorn dam? A. Yes.
" Q. What was the cause of the deposit of sand in the channel of the river above the dam, and up as far as the ford at the McLeod house? A. The dam, the Spragg-Bewley-Alcorn dam.
"Q. Do you know what'caused the overflow? A. The river not having capacity to carry the water.
"Q. Why didn’t it have the capacity? A. The river filling up with sand.”
The witness G. H. Baker was interrogated, and testified as follows:
"Q. Do you know what effect the building of these brush dams has upon the bed of the river above the dams? A. I do.
"Q. What is that effect? A. Naturally fills the bed of the river with sand. A dam would not stay there if you *501don’t get sand piled up to hold it there when high water came.
"Q. Take a dam, say from six, seven, or seven and one-half feet in height, how far will the sand back up back of the dam, in the river bed, in course of time? A. A dam six or seven feet, down in the valley where there is not much fall, will probably back sand for two miles.”
At another place, later on, the witness was interrogated, and testified:
"Q. Now, then, do you know what caused the damage to the McLeod ranch? A. Yes.
"Q. What was the cause? A. The carrying capacity of the river was so filled up with the debris and sand that the sand overflowed its banks.
" Q. Then, as a matter of fact, it was simply because the carrying capacity of the river was lessened by means of this filling you speak of? A. Yes.
" Q. What was it that lessened it, this carrying capacity ? A. My judgment, this dam put in the river filled it up.
"Q. Which one do you have reference to? A. Spragg-Bewley-Alcorn dam.”
The witness J. C. Mills was interrogated, and testified:
"Q. Now, then, do you know what caused the sand to fill in the river at or near the headgate of the Merritt ditch? A. Yes.
"Q. Now, then, what was the cause of the sand gathering in and filling in the river bed? A. It was the Spragg-Bewley-Alcorn dam.
"Q. Do you know the cause of this overflow of the McLeod ranch? A. Yes.
"Q. Now, then, what was the cause? A. The reason of the overflow was the channel of the river was plumb full of sand and sediment. There was no room for the water in the old channel, and it had to get away some place.
" Q. Do you know the cause of this filling of this sand in the river, as you described it? A. Yes.
*502"Q. What was the cause? A. The Spragg-Bewley-Alcorn dam.”
The witness Frank Feigenspan was interrogated, and testified:
"Q. What was the cause of the river filling so with sand at that point near the head of the Merritt ditch above and below? A. The Spragg-Bewley-Alcorn dam.”
The witness J. E. Gignoux was interrogated, and testified:
"Q. Do you know what caused the overflow on the ranch as you found it? A. Yes.
"Q. What was the cause? A. The dam.
" Q. Now, if you know, I wish you would explain to the jury what effect that dam had upon the river, and why it caused the overflow? A. The dam checked the flow of the water, causing a deposit of sand gradually to fill up the bed of the river and channel.”
The witness Charles A. McLeod was interrogated, and testified:
"Q. Do you know what effect the building of that dam, as you have described it, has had upon the bed of the Walker River? A. I do.
"Q. What was that effect? A. Had the effect of filling the river with sand.
" Q. How far up the river, if you know, has this dam caused the river to fill with sand? A. Up in the neighborhood of the house.
"Q. Now, then, do you know the cause of the overflow and damage to the McLeod ranch, and crops growing on it?. A. Yes.
"Q. What was the cause? A. The Spragg-Bewley-Alcorn dam. ” >
The witness G. B. Waldo was interrogated, and testified:
"Q. Do you know what brought about this change in the condition of the river at that point,' near the Spragg-Bewley-Alcorn ditch, as you saw it in 1905 or 1906? A. Yes, I know.
"Q. What was the cause? A. The cause was by putting the dam in.
*503" Q. Describe the effect of that dam on the bed of the river above the dam through the McLeod place. A. They put a dam in the river, and it may back up for a quarter of a mile; if you keep building the dam up, it will back for a quarter of a mile until the current stops running, and this works on the river for a quarter of a mile or more, and then it fills the channel of the river with sand and sediment.
"Q. Do you know what caused the overflow of the McLeod place? A. Yes.
"Q. What was the cause of the overflow of the McLeod place, as you found it when you were there? A. By this dam being put in and making the channel of the river smaller and shallower.”
The respondent Angus McLeod, being interrogated as to the cause that brought about the flooding of his premises, said:
"Well, I had better not say, I might not know, but I do know that it was caused by this dam in the river, I am positive; I know what it was; every one of them know that the dam caused the river to fill up and overflow.”
Whatever might be observed with reference to the individual witnesses whose testimony is assigned as error, there are certain facts disclosed by the record applicable to all. It is the contention of respondent that these witnesses were fully qualified as experts. It is sufficient to say, however, that each one, according to the record before us, appears to have been more or less familiar with the Walker River, its nature and ordinary action, familiar with the dam known as the Spragg, Alcorn & Bewley dam, and familiar with the land and premises of respondent overflowed or inundated by the waters of the Walker River. Moreover, it is disclosed by the record that each of these witnesses had more or less experience in the construction and use of dams in this particular locality, and in this particular stream, and had by reason of their experience in this respect acquired at least some knowledge of the nature of the stream and its habits, or what it ordinarily did in the way of depositing *504sand, silt, or sediment above obstructions thrown across it or placed so as to affect its current. Moreover, each one of these witnesses, according to the record, had been present on and about the McLeod ranch and premises at the time of the floods complained of and had observed the action of the Spragg, Alcorn & Bewley dam on the Walker River during the flood seasons.
The matter elicited by the interrogatories and the answers given were in each instance with reference to the subject about which the witnesses had qualified themselves, by more or less observation and experience, to testify. The weight of the testimony and its significance were in each instance matters for the jury. The reception or entertainment of such testimony has by some authority been regarded as a matter largely within the discretion of the trial court. (Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487.)
I am favorably inclined to the doctrine set forth in the case of Hand v. Catawba Power Co., 90 S. C. 267, 73 S. E. 187, wherein the court, considering a matter analogous to the one at bar, said:
"The court allowed plaintiff’s witnesses, who were not experts, but who had, for many years, known and observed plaintiff’s water power, and were familiar with the creek and the surrounding country, and had observed the results of freshets in the creek and river, to express their opinion that defendant’s dam caused plaintiff’s injury. The defendant contends that the ruling was erroneous. The rule is well settled that, when the matter or thing to which the evidence relates cannot be reproduced or clearly described to the jury, the witness, though not an expert, may give his opinion, after stating the facts and circumstances upon which it is based.”
This doctrine is also supported by decisions in the case of Seibles v. Blackwell, 1 McMul. (S. C.)56; Jones v. Fuller, 19 S. C. 66, 45 Am. Rep. 761; Chemical Co. v. Kirven, 57 S. C. 445, 35 S. E. 745.
The discretion which may be exercised by the trial *505court in determining the admissibility of such testimony warrants a court of review in refusing to disturb its determination, unless the record discloses manifest error on the part of the trial court and prejudice resulting therefrom.
Opinions of witnesses familiar with given premises, or, as in this case, with a given stream and the territory through which it flows, are, we think, at least as certain where such witnesses have had an opportunity to observe, and their testimony shows them to be qualified and discloses no bias, as are measurements taken on the ground either before or after the occurrence of a given incident, such as the sudden overflowing of premises during a flood season. Especially is this true where such incident and the phenomena attending it are impossible of reproduction. (Hand v. Catawba Power Co., supra; McLeod v. Lee, 17 Nev. 122, 28 Pac. 124.) It has been held that witnesses who qualified as to having had the experience may properly testify as to the effect produced by a given cause with the nature and surroundings of which the witnesses are cognizant. (Ryan v. Manhattan Big Four M. Co., 38 Nev. 92, 145 Pac. 907.) Learning or technical training are not always essential elements of qualification to warrant a court in receiving the testimony of a witness. There is no fixed or invariable rule established, by which a trial court shall determine the exact degree and amount of knowledge, experience, or skill an expert shall possess before permitting him to testify. (Carscallen v. Coeur d’Alene & St. J. T. Co., 15 Idaho, 444, 98 Pac. 622, 16 Ann. Cas. 544.)
It has been well stated that facts testified to by witnesses are to a large extent conclusions. A witness sees a thing done or a certain act performed; he has seen the thing done and the act performed many times before; he has had opportunity and occasion for observation; his testimony as to what caused or brought about the thing performed or the act done, although, strictly speaking, it is a conclusion, is not inadmissible.
*506A man who lives in the vicinity of a mountain stream, and who has had experience in the way of constructing dams in that stream for the purpose of diverting water into ditches, and knows the nature of that stream as being one that carries great quantities of silt and debris during flood season, and has had occasion to observe that the result of his obstruction placed in the stream is to impound and hold large quantities of this silt and debris, is, we think, eminently qualified to testify with reference to this subject and the causes that bring about certain conditions.
The prevailing opinion lays stress on the fact that the testimony offered in support of appellants’ contention was elicited from experts and engineers trained in hydraulics, and pays a flattering tribute to one of these as being now chairman of the Fourth-section board under the Interstate Commerce Commission, and then goes on to say:
"In opposition to the testimony of defendants’ engineers and the testimony of Mr. Hammond (expert called in behalf of plaintiff), just quoted, is the testimony of several ranchers who had lived in the community for a number of years.”
This is indeed a sublime comparison.
The witnesses in this case, whose testimony was objected to by appellants, were, according to their testimony, residents of Mason Valley, some of them for many years, and all of them for a length of time which in my judgment warranted the court in admitting their testimony to the jury. The facts testified to, so far as physical appearances and after results were concerned, were all afterwards viewed by the jury, and they had opportunity thereby to judge of the credibility and competence of these witnesses and to come to conclusions for themselves as to whether or not the witnesses were correct in their statements as to the cause of the inundation. Whether or not there were physical facts which made the testimony of these witnesses or the conclusion *507reached by them inaccurate was a matter for the jury to determine; and they by their general verdict having determined the matter in favor of the plaintiff; respondent herein, their finding in this respect, having in my judgment substantial evidence to support it, should not be disturbed.
It is asserted by appellants that the witnesses offered by them at the trial were men of technical training and experts in the lines of hydraulics. This may be true, but appellant’s argument in this respect is made to the wrong tribunal. It was a matter for them to impress on the jury, which they no doubt did present in a manner in keeping with the splendid ability of the eminent attorneys for appellants. It was for the jury to determine, after all, as to which of these witnesses they would believe. There is no rule, of which we are aware, that will compel a jury to disregard or disbelieve any competent, material, relevant evidence properly admitted. Verdicts may be arrived at on a single assertion made by the most humble, illiterate individual as against profound statements uttered by men of technical training.
Appellants complain that the witnesses whose testimony was objected to were permitted to testify positively as to the cause of the overflow of the Walker River on the premises of respondent. This, I think, is well answered in the assertion of Mr. Wharton in his work on Evidence, wherein the author asserts in substance that an opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever the condition of things is such that it cannot be reproduced to the jury. (Hand v. Catawba Power Co., supra.)
In the case of People v. Jennings, 252 Ill. 534, 552, 96 N. E. 1077, at page 1083 (43 L. R. A. n. s. 1206, 1213), the court said:
"While it is usual for expert witnesses to testify that they believe or think, or in their best judgment, that such and such a thing is true, no rule of law prevents them from *508testifying positively on such subjects. It is for the jury to determine the weight to be given to their testimony.” (Wharton on Criminal Evidence, 8th ed. sec. 459; 1 Wigmore on Evidence, secs. 656-659; Jones on Evidence, 2d ed. sec. 360; Ryan v. Manhattan Big Four Mining Co., supra.)
Mr. Rogers, in his work on Expert Testimony (2d ed. p. 7), briefly asserts the rule as follows:
"The court must decide whether the subject-matter to which the testimony relates is of such a nature as to warrant the introduction of opinion evidence from nonprofessional witnesses. In deciding that question the court will be governed by the following principles: (a) It is competent for a witness to state his opinion in evidence when the primary facts on which it is founded are of such a nature that they cannot be adequately reproduced or described to the jury, so as to enable another than the actual observer to form an intelligent conclusion from them, (b) And when the facts upon which the witness is to express his opinion are of such a nature that men in general are capable of comprehending and understanding them. ”
This learned author quotes generously from the case of Porter v. Pequonnoc Mfg. Co., 17 Conn. 249, wherein the court, in dealing with the question of the admissibility of the opinion of nonexpert witnesses, where the question was as to the strength and sufficiency of a dam to sustain a quantity of water, said:
"They (the witnesses) had acquired, by their personal observation, a knowledge of the character of the stream, and also of the dam, and were therefore peculiarly qualified to determine whether the latter was sufficiently strong to withstand the former. The opinions of such persons, on a question of this description, although possessing no peculiar skill on the subject, would ordinarily be more satisfactory to the minds of the triers, than those of scientific men, who were personally unacquainted with the facts in the case. ”
In the case of County Commissioners v. Wise, 71 Md. 43, 18 Atl. 31, the Court of Appeals of Maryland held, in *509an action for damages caused by the washing away of a bridge alleged to have been unskilfully built:
" It is competent to allow a witness to testify, from his knowledge of the stream, extending back” over a number of years," whether the width of the span and the height of the bridge were sufficient to enable the water to pass.”
But no ruling on this subject is, in my judgment, any stronger than that found in the decision of this court in the case of McLeod v. Lee, 17 Nev. 103, 28 Pac. 124. That was a case almost identical to the one at bar. Respondent herein was also respondent therein. And the rule asserted in that case is that the observations, judgment, and opinions of witnesses acquainted with the premises as to the cause of the overflow were as certain and direct as the measurements that were taken upon the ground. The rule asserted by this court in McLeod v. Lee, supra, is cited by Mr. Rogers in his work on Expert Testimony in support of the assertion that the opinions of ordinary nonexpert witnesses may be received on the question of what was the possible cause of a given effect. (Rogers on Expert Testimony, 2d ed. p. 15.) The assertion of this court in the case of McLeod v. Lee, supra, is no less emphatic upon the point in question than is that of many other jurisdictions, to wit: Clinton v. Howard, 42 Conn. 294; Indianapolis Street Ry. Co. v. Robinson. 157 Ind. 414, 61 N. E. 936; Barry v. Farmers’ Mutual Ins. Assn., 110 Iowa, 433, 81 N. W. 690; Laird v. Snyder, 59 Mich. 404, 26 N. W. 654; Ohio R. Co. v. Long, 52 Ill. App. 570; White v. Farmers’ Mutual Fire Ins. Co., 97 Mo. App. 590, 71 S. W. 707; Dwyer v. Buffalo General Electric Co., 20 App. Div. 124, 46 N. Y. Supp. 874; Virginia-Carolina Chemical Co. v. Kirven, 57 S. C. 445, 35 S. E. 745; Texas & P. Ry. Co. v. Wooldridge (Tex. Civ. App.) 63 S. W. 905; Union Pacific R. Co. v. Gilland, 4 Wyo. 395, 34 Pac. 953; St. Louis & S. F. Ry. Co. v. Bradley, 54 Fed. 630, 4 C. C. A. 528.
The prevailing opinion assumes to assert that there could be no liability in damages in this case, even assuming that the dam could cause the deposition of sand in *510the bed of a river above the highest point of backwater, for the reason that dams in river channels are essential to irrigation in this state, and that the law recognizes irrigation not only as lawful, but as especially favored, and that damage caused otherwise than by direct overflow is such a consequential damage that no liability in the law exists therefor.
If this assertion had any foundation either in custom or law, it would be inapplicable here. The dam in question here was not essential to the ditch, in so far as the original purpose of that waterway was concerned. The dam was only essential to the forced, unusual, and, if I read the record aright, unreasonable use to which the Spragg, Alcorn & Bewley ditch was put. In this I have reference to the fact, as disclosed by the record, that three dams were thrown across the Spragg, Alcorn & Bewley ditch to force the water out of that ditch into branch ditches constructed to cover higher lands, and I have reference to the further fact, as disclosed by the record, that the ditch which was five feet deep at its construction was, by reason of the new use to which it was forced, filled up with sediment and sand and debris until it was little more than half of its original dimension. The Spragg, Alcorn & Bewley dam, according to the record; was constructed, not for the purpose of forcing water into the Spragg, Alcorn & Bewley ditch, for that was unnecessary, inasmuch as the ditch originally took water from the river without a dam, but the dam was constructed to overcome the effect of the filling up of the ditch, brought about by the obstructions thrown across it and the new, unnatural use which it was made to serve.
Mr. Farnham, in his work on Waters and Water Rights (vol. 2, sec. 551), says:
"An action will lie for penning backwater, as soon as it interferes with a use to which the upper proprietor attempts to put his land,’ although he was not making such use of the land when the dam was built. In order to give the upper owner a right of action the water must *511be set back over his line, because neither the erection of a dam nor the ponding of the water is a nuisance per .se. So, it is not the erection of the dam which gives the right of action, but the subsequent use of it in case it throws-the water across the line. ”
The prevailing opinion in this case, in my judgment, is based upon a false conception of the testimony and the record as it is presented to this court. The Spragg, Alcorn & Bewley ditch was originally constructed to lead from the river into what became known as the Spragg, Alcorn & Bewley slough, sometimes called the Mason slough. The latter was utilized as a ditch by the original constructors. Spragg, who originally constructed the ditch, testified that at the time of the construction of his ditch the banks of the river at the intake of the ditch were approximately seven to seven and one-half feet. He testified that it required no dam to force the water from the Walker River into the ditch. He testified that so great was the flow of' water through the ditch thereafter that it caused him to be apprhensive lest it should injure parties who lived below.
The testimony of Harry Warren is to the effect that three separate dams had been thrown across the Spragg, Alcorn & Bewley ditch for the purpose of supplying water to three separate branch ditches, each one of which took the water at the height of its respective dam; the object of this being to cover higher lands. These dams maintained in the Spragg, Alcorn & Bewley ditch raised the level of the water in that ditch and so forced it back as to make it necessary to continuously raise the Spragg, Alcorn & Bewley dam in the river.
The witness Harry Warren testified that in 1904 and 1905 the Spragg, Alcorn & Bewley dam had been so raised and enlarged that the water flowing over the dam had a drop of between six and seven feet. The witness was interrogated and testified:
" Q. Can you describe the difference in the condition of the river between the Spragg, Alcorn & Bewley dam and *512the head of the Merritt ditch in 1904, and when you saw it in the years preceding — say fourteen years back? A. It was filled up an average of three feet, I think.
• "Q. In 1904 was there any difference in the river above and just below the Spragg, Alcorn & Bewley ditch? A. It was higher above than it used to be in the earlier days, owing to the bottom being filled up.
"Q. What do you mean by higher; the sand in the river, or the water? A. The sand bar was higher above than below. The sand was thre'e feet higher than below.
" Q. Then the water is level across that dam and had a drop of three feet just over the dam? A. Had a drop of ’ between six and seven feet.
"Mr. Treadwell — In 1904? A. Yes, in 1903.
" Q. How was that in 1905 ? A. It was very near the same, only the drop of the dam washed off a little bit.
"Q. Now in 1904, at the time you bulkheaded the Merritt ditch, did you notice how much farther up the stream this filling of sand had gone? A. Clear up above the Merritt ditch, filled up so much made it fall from the river into the Merritt ditch. We would say among ourselves, the high water would come again.
"Q. To fall from where into the Merritt ditch? A. From the river, the bottom of the river.
"Q. Then the sand had filled in so much that the bed of the river was raised above the head of the Merritt ditch? A. Quite a fall. We could have taken the dam out at the Merritt ditch, and it would have taken the river at that time.”
The Merritt dam, upon which stress is laid in the prevailing opinion as having been an agency in contributing to the flooding of the premises of respondent, was originally but eighteen inches high. It was covered over with the sand that extended upstream from the Spragg, Alcorn & Bewley dam as early as 1884. It was never used as a dam after that date. As early as 1885, it was covered three feet deep with the sand that extended from the Spragg, Alcorn & Bewley dam. The banks of the river in the vicinity of the Merritt dam, which were *513originally approximately seven feet high, were in 1904 but three feet high. These facts are set forth in the record from the testimony of Feigenspan, Warren, McLeod, Waldo, and many others, and these facts are supported by the measurements taken by the respective engineers who testified in the case. May we not question how could the Merritt dam, covered over by a deposit of sand and sediment to a depth of three feet as early as 1885, have affected the flow of the stream in 1904? One other pertinent question appeals to us from the record, in view of the position taken in the prevailing opinion. Could the Merritt dam, that had passed out of existence as early as 1884, have caused the deposit of silt and sediment below or downstream from the place where it once existed? And if this must be answered in the negative, then another question appears to me to be pertinent: What caused the filling in of the bed of the stream to a depth of approximately three feet downstream from the Merritt dam that had gone out of existence, and between the place where it once existed and the Spragg, Alcorn & Bewley dam?
Let us apply the doctrine of physical impossibility, the keynote of the prevailing opinion, to that section of the bed of the river between the place where the Merritt dam once existed and the Spragg, Alcorn & Bewley dam, and let us take the assertions relied upon as facts in the prevailing opinion. The prevailing opinion assumes the distance between the Spragg, Alcorn & Bewley dam and the Merritt dam to be 4,000 feet. The prevailing opinion assumes the height of the Spragg, Alcorn & Bewley dam to be three and one-half feet. The prevailing opinion assumes the grade of the river between these two points to be one foot to every thousand linear feet. The conclusion reached from these assumed facts is that the Spragg, Alcorn & Bewley dam could not affect the flow of the stream to a point farther up than 3,500 feet. What caused the filling in of the channel of the stream for the other 500 feet? The rule relied upon in the prevailing opinion asserts that it was a physical impossibility. *514for the Spragg, Alcorn & Bewley dam to accomplish this, and yet the record discloses that the entire distance between the two dams, or between where the Spragg, Alcorn & Bewley dam actually existed, and where the Merritt dam once existed, was filled in and the bed of the river raised approximately three feet for the entire distance. It was so filled in both above and below the place where the Merritt dam once existed that the Merritt dam itself was covered to a depth of three feet. Our effort in this respect, however, is lost, in view of the fact that the distances, dimensions, and grades asserted in the prevailing opinion are, as I view it, unsupported by the record.
The prevailing opinion lays some stress on the fact that the water which flooded the premises of respondent flowed back into the river some distance above the Spragg, Alcorn & Bewley dam. This is relied upon as a fact tending to disprove the effect of the Spragg, Alcorn & Bewley dam on the river at the point where the water broke from the river channel. It requires but a reading of the record in this case to account for this. The record discloses that measurements and elevations taken establish that in many places upstream from the Spragg, Alcorn & Bewley dam the banks of the river were not flooded by the overflow in the years complained of, while portions of the premises remote from the river were covered with water. This was due to the fact that the banks of the river were higher than great portions of the surrounding country. Moreover, it requires but a reading of the transcript in this case, and in fact a reading of the briefs of appellants, to ascertain the fact, as established by measurements and levels taken, that for some distance above the place where the Spragg, Alcorn & Bewley dam is situated the banks of the river, as well as portions of the surrounding territory, are higher than the flooded portions of respondent’s premises, and higher than the greatest elevation reached by the flood waters.
The prevailing opinion makes the assertion that the Spragg, Alcorn & Bewley dam was, prior to 1903, never *515more than four feet high, and at no subsequent time over five feet high. Unless we are to accept the testimony of one witness as against that of another, I am unable to see how this court can adopt this assertion. The bank of the river at the place where the Spragg, Alcorn & Bewley dam was located was, prior to the construction of the dam, according to nearly all the witnesses, at least seven feet high. The witness Nichol testified that between 1885 and 1896 the dam was from one and one-half feet to two feet below the banks of the river, from which it follows that the dam was at least five feet high. The witness Plummer testified that the dam was about two or two and one-half feet below the banks of the river in 1899, resulting in the conclusion that the dam was then four and one-half feet high. The witness Gifford, manager of the Miller & Lux properties and foreman and manager of the Miller & Lux interests in the Spragg, Alcorn & Bewley ditch and dam, testified that up to 1903 the dam was two and one-half feet below the banks of the river, resulting in the conclusion that the dam was at least four and one-half feet high at that time. The witness Spragg testified that in 1867, when he disposed of the Spragg, Alcorn & Bewley ditch, it was five feet deep at its intake; that the bottom of the ditch was above the bed of the river; and that at the intake of the ditch there was a deep hole in the bed of the river.
The witness Waldo testified, corroborating the statements of Spragg as to the original depth of the ditch, and further testified that at the intake the bed of the river was about four feet below the bottom of the ditch. This testimony would warrant the conclusion that at the time when these witnesses were interested in the Spragg, Alcorn & Bewley ditch, and before the construction of the dam, the distance from the bottom of the river to the top of the bank was approximately nine feet. Applying to this the testimony of Gifford, manager for the appellant companies, that in 1903 the dam was two and one-half feet below the banks of the river, it amounts to but a simple matter of deduction that from the bottom *516of the river, as it was at the time of the first construction of the dam, to the top of the dam, as it was in 1903, was approximately six and one-half feet. This is further supported by the testimony of Warren, wherein he stated that the water in 1903 had a drop over the dam of between six and seven feet.
The prevailing opinion states:
" The upper point of overflow, which is alleged to have caused considerable damage, was over two miles up the river from the Spragg, Alcorn & Bewley dam. The fall in the river is about one foot to the thousand, which would make the bed of the river at the Spragg, Alcorn & Bewley dam about ten and one-half feet lower than the upper point of overflow.”
The witness Charles McLeod testified that the first overflow in 1904 was in June of that year, and was about 300 or 400 feet above the Perazzo cut, indicating that it was between stations 38 and 39 on respondent’s Exhibit 1. This point, at most, could have been but a trifle over 4,500 feet from the Spragg, Alcorn & Bewley dam. The witness McLeod testified that this was the most remote point of overflow from the Spragg, Alcorn & Bewley dam in 1904.
The testimony of the witness Charles McLeod further establishes the fact that at the same time there was a break in the river bank and an overflow at or about the mouth of the crosscut indicated on respondent’s Exhibit 1, this point being less than 2,000 feet upstream from the Spragg, Alcorn & Bewley dam and between the Spragg, Alcorn & Bewley dam and the Merritt dam; and I may observe parenthetically at this point that the Merritt dam could have had no effect upon this latter overflow. This observation I make in view of the position taken in the prevailing opinion that the Merritt dam may have contributed to the injury of respondent. It is hardly necessary for me to emphasize the fact that the Merritt dam could have contributed no part toward overflow that occurred between the position that it had formerly occupied and the Spragg, Alcorn & Bewley dam; nor need I *517emphasize the further fact that the theory of physical impossibility could not relieve the Spragg, Alcorn & Bewley dam of the responsibility for this overflow. This flood covered a great portion of the McLeod ranch and practically destroyed the crops for that year.
In view of the record presented to this court, I am unable to see how the prevailing opinion can support the several assertions of fact relied upon therein for the several conclusions reached.
Summed down to its last analysis, this case presents physical conditions undeniable:
First — The premises of Angus McLeod, the respondent, were flooded by the overflow waters of the Walker River. Minor floods had taken place in years past, but the floods of 1904,1905,1906, and 1907 were such that they destroyed great tracts of cultivated land and covered other portions with sand and sediment.
Second — The bed of the Walker River had been filled in with sand and sediment from the Spragg, Alcorn & Bewley dam upstream to and beyond the point where the river broke from its banks and destroyed the premises of respondent. So great was the amount of the filling that at the intake of other ditches several thousand feet upstream it became necessary to build dams across the mouth thereof, to prevent the entire river from flowing through. Other dams that had been in existence in the river were entirely covered up with the sand and sedimentary deposit extending from the Spragg, Alcorn & Bewley dam upstream. From the Spragg, Alcorn & Bewley dam, and extending to and beyond a point where the greatest volume of water broke from the river banks, islands and bars had formed in the channel. Downstream from the Spragg, Alcorn & Bewley dam there was no filling in of the bed of the stream, no islands or other bodies in the channel, at least until after 1905 when the top of the Spragg, Alcorn & Bewley dam was washed off.
Third — The Spragg, Alcorn & Bewley dam had been continually enlarged to meet the increased demand for water through the Spragg, Alcorn & Bewley ditch. Three *518dams had been thrown across the Spragg, Alcorn & Bewley ditch to force water into the several branch ditches. The ditch itself had been allowed to fill with sediment. All of which required the raising and enlarging of the main dam (the Spragg, Alcorn & Bewley dam) in the river.
Scientific experts, after viewing the premises, the dam, the river, and its surroundings, long subsequent to the flood, say that it was a physical impossibility for the Spragg, Alcorn & Bewley dam to have caused the flooding of respondent’s premises. Scientific experts, viewing the premises, say that by reason of a rule known to hydraulics it was impossible for the Spragg, Alcorn & Bewley dam to have affected the flow of the stream or caused the deposit of sediment to a greater distance than to a point where a horizontal line drawn across the crest of the obstruction would intersect the bed of the stream. Yet, in the face of this testimony, we have the physical facts, the physical presence of the filling up of the bed of the stream, of the formation of bars and islands extending all the way from the Spragg, Alcorn & Bewley dam many thousands of feet farther upstream than this theoretical point of intersection. The flooded area covering the premises of respondent extended upstream from the Spragg, Alcorn & Bewley dam, and there was no flooded area, so far as the record discloses, below this obstruction.
Many other witnesses, laymen who were on the ground and in the vicinity at the time of the flood and for many years previous to it, who had opportunity to see and observe the Walker River at the time of the floods complained of, opportunity to see and observe the premises of respondent at the time of the floods complained of, at the time at which these premises were inundated— these witnesses, basing their testimony on no theory, but upon what they actually observed, testified not only as to what they saw with reference to the action of the river and the condition of the Spragg, Alcorn & Bewley dam, but from their experiences and observations extending through years, and in some instances through an *519entire lifetime, told of the cause which wrought the destruction of respondent’s farm. They gave their personal observations. They related physical conditions actually observed by them. They said it was the Spragg, Alcorn & Bewley dam. The jury impaneled to try the case, after listening to these two conflicting lines of testimony, and after visiting the premises themselves, rendered a verdict which by its general terms found the flooding of the premises of respondent to be due to the filling in of the original bed of the stream, caused' by the Spragg, Alcorn & Bewley dam.
The position taken by my learned associates in this case in the prevailing opinion, as well as in the concurring opinion of Mr. Chief Justice Norcross, is in the first instance and primarily based upon scientific theories.They lay aside proven physical facts and accept what they term to be a "law of hydraulics.” Things positive are laid aside for things conjectural.
I know of no language more expressive of my views of this case than that asserted by the Supreme Court of Pennsylvania in the case of Brown v. Bush, supra, wherein that court, supported in its position by many authorities which I have taken occasion to cite, says:
"We do not undervalue scientific measurements, but the history of all engineering in Pennsylvania has shown that, whenever science has disregarded and set aside the testimony of local experience and observation, it has blundered, and has had to do its work over again. Its conclusions may be fortified by the nicest experiments and the minutest calculations, but there are the fallibility of instruments, the unsteadiness of the hand or eye that uses them, the carelessness of assistants, and other causes which affect the results. And then Nature has her own secrets, which she has not revealed, even to science. Who can calculate for what the watermen call 'piling’ of water; or for the effect of removing a given obstruction a few rods farther downstream, whereby the velocity of the current at a particular point is changed; or for atmospheric resistance to water? The question of fact in this *520case was a very close one. No doubt the leveling was well done, but if in spite of it the water would make other marks than it did when obstructed only by the stone row, it was a telltale that could not be contradicted. ”
In the face of the record presented in this case, I am unable to close my eyes to the facts presented by the physical conditions found to be in actual existence, and adopt a theory which says it is a physical impossibility for. these proven physical conditions to exist. I am unable to accept a theory which, even if certain, would in this case be inapplicable, and reject established facts.