On Rehearing
By the Court,
Coleman, J.:Since this case was formerly before us, Angus McLeod has died, and on motion Mason E. McLeod and Charles A. McLeod, executors of his last will and testament, have been substituted.
When this case was before us originally, we did not consider the assignment of error relied upon by appellants which goes to the alleged erroneous ruling of the court upon the motion for a change of venue, for the reason that as we were of the opinion that the judgment should be reversed for other reasons, we did not think it necessary to consider that assignment, in view of the probable change of conditions in the county of the trial subsequent to the date of the former trial in the district court, and especially since, under the law as it now stands, an appeal can be taken directly from an order denying such a motion. We see no reason to change our position on this question at this time, and merely allude to it now because of the earnestness with which the assignment was urged upon us upon the argument on rehearing.
Before entering upon a consideration of what we deem to be the serious question in this case, we desire to dispose of one point presented by the respondents in their petition for rehearing and in the argument on rehearing, *521and that is that in the original decision reversing the judgment we ignored the long line of decisions of this court holding that the supreme court will not disturb the verdict of a jury when there is a substantial conflict in the evidence. As to the general proposition of law contended for by counsel for respondents, there can be no question. But it seems to us that where the findings of the lower court are based upon incompetent evidence, admitted over the objection of the adverse party, to which exceptions were taken, and which admissions of evidence are assigned as error and relied upon in the appellate court, where it is held that the evidence was erroneously admitted, the contention must fall. Such was the theory upon which the court proceeded in the original decision herein, and we think' the views then entertained are sound. The point most strenuously urged upon the rehearing is that the court took the wrong view of the law upon the question as to the competency of the evidence given by witnesses which was termed nonexpert. It was said by counsel for respondents that the views of the court as expressed on this question are contrary to all authority upon the question, and that “the decision in this case is an unquestionable reversal of the rules applied in the former decision of this court in McLeod v. Lee, 17 Nev. 103.” We are forced to take issue with the contention of counsel. We did not undertake to distinguish the McLeod-Lee case in our former opinion, for the reason that we thought a mere perusal of it would convince any one of its nonapplicability to the situation here presented. But in view of the contention of counsel, we will point out wherein it is of no force in reaching a conclusion in this case upon the question of the competency of the nonexpert testimony admitted in the case. What was said in the McLeod-Lee case that could have any possible bearing upon the question involved will be found on pages 122 and 123, from which we quote:
“The testimony as to the character of the measurements taken is thus given by the defendant Lee. In *522reply to the question, ‘What was the difference in the level of the water above and below the dam?’ he said: ‘By an actual level made there, about sixty feet below the dam to sixty or eighty feet above, was eight inches and a half. I took the level with a spirit level and square. I waded out in the water up to my knees, and put the stakes down until I shoved them down with a level above; found it was correct, and called the attention of four or five persons present.’
“This witness also testified that he sailed over the dam in a flat boat, with a pole eight or ten feet long, and did not upset. ‘When I got under the willows * * * I put down the pole as far as I could, but could not find any bottom in the current of the stream.’ “The character of the measurements, taken, as they were, with a spirit level and square, in the river, amidst the eddying tide of the water and the drifting currents of the sand, could not, it seems to us, be any more certain or direct than the observations, judgments, and opinions of witnesses who were well acquainted with the premises.”
“Upon examination of all the evidence we think the plaintiff’s witnesses testified as positively, direct, and certain as to the cause of the overflow as the witnesses on the part of defendants.
“There being a conflict of evidence, we cannot disturb the decision upon this ground.”
It does not appear from the opinion that any objection was made to the testimony of the witnesses who gave their opinions as to the cause of the overflow, consequently the same question was not presented to the court in that case which we are called upon to determine, and it will be seen from that portion of the opinion quoted that the court did not put its stamp of approval upon the opinion evidence given in that case. About all it held was that as between what it probably thought unsatisfactory evidence given on both sides of the case, it would not disturb the verdict of the jury.
Another feature of that case, which robs it of all *523semblance of authority for our guidance in the case at bar, is that the facts in that case presented an entirely different situation from that presented for our consideration. So far as can be gathered from a reading of the opinion, the point of overflow which was the basis of the action in that case was not more than sixty to eighty feet above the dam, while in the case at bar the point of overflow which did the most damage was two miles above the dam. There was no dam between the dam which caused the overflow in that case and the point of overflow, there were no cuts and ditches to be taken into consideration, as in the case at bar. Furthermore, a man could have stood at the dam in question in that case, and so far as appears from the opinion, have seen with his naked eye the backwater therefrom going out of the banks of the river sixty' or eighty feet above. Surely no one would say that the situation there presented was in the least similar to the situation in the case at bar. In that case any person could have seen with the naked eye the direct effect of the dam in causing backwater to overflow the land.
Another distinguishing feature, and the most serious one, is that in that case nothing was claimed as a consequence of the deposit of sand in the stream, while in this case the entire reliance of plaintiff is based upon the deposit of sand far above the point where a line drawn from the crest of the water as it goes over the dam intersects the bed of the stream.
In the light of these distinguishing features, how can it be said that the McLeod-Lee case is authority in the case at bar, or of the least assistance to us in solving the question under consideration?
We will now take up the other cases relied upon by counsel, and undertake to show wherein they are dissimilar from the case at bar; and in this connection it must be kept in mind at all times that there are certain facts and circumstances which make this case dissimilar from any of the cases mentioned, viz.the existence of the Merritt dam between the Spragg, Alcorn & Bewley *524dam and the points of overflow complained of, the making by plaintiff of the several cuts between the dams in question and the point of overflow chiefly complained of, and the cutting of the Perazzo ditch.
Of the cases cited, the one which approaches more nearly the case at bar is that of Hand v. Catawba, 90 S. C. 267, 73 S. E. 187; but in that case there was no dam above the dam alleged to have been the cause of the damage complained of; there were no fresh cuts made by the plaintiff, as in the case at bar; there was no ditch corresponding to the Perazzo ditch in the case now under consideration. While the fall of the river in that case is not given, it is apparent that it was very slight.
The case of Allen v. Thornapple, 144 Mich. 370, 108 N. W. 79, 115 Am. St. Rep. 453, cited by respondents, was one in which suit was brought to recover for damages caused by backwater from a dam. So far as appears, there was no controversy as to the competency of expert or nonexpert testimony. It does not aid in determining the question here. The same may be said of Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243. The case of Brown v. Bush, 45 Pa. 61, is one in which the facts were so dissimilar from the one at bar as to rob it of all value in assisting us in the present case. In that case the dam was only 100 feet below plaintiff’s property. It was not a case in which the deposit of sand caused an overflow two miles above the dam, as in the case at bar, but was a case where one standing at the dam could plainly see with the naked eye the effect of the dam upon the water.
As to the case of Treat v. Bates, 27 Mich. 390, all that need be said is that it was not a case where it was contended that a deposit of sand was caused, as in this case, nor are the distances nor the fall of the river nor the height of the dam given. In short, no data is given upon which a comparison can be made to the case at bar.
Respondents complain bitterly of the position taken by this court in the former opinion in its holding in *525regard to the testimony given as to a statement alleged to have been made by N. H. A. Mason, as follows:
" If they keep building that dam up, some day it is going to ruin your place. ”
Counsel say:
" It is strange that the court found no evidence in the record to sustain the contention that Mr. N. H. A. Mason was the predecessor in interest of defendants, Miller & Lux and Pacific Livestock Company.”
Again counsel are mistaken. We knew full well when then considering the. case that the evidence shows that Mason was the predecessor in interest of appellants Miller & Lux and Pacific Livestock Company. That was an admitted fact. If counsel will only read our opinion, they will see that we did not question Mason’s prior ownership. What we did say was that there was no evidence in the record that Mason owned the property "at the time it is alleged he made the statement.” The very language attributed to Mason, especially the word "they,” indicates that if he did use the language claimed, it was some time after he parted with the title to the property.
Counsel for respondents complain also of our holding in the former opinion as to the proper method of proving the damages alleged to have been sustained by the respondents. We want to say that on this question the authorities are divided, and it is possible that we would not have reversed the judgment because of the method of proving the damages alleged to have been sustained, but in finding it necessary to reverse the judgment for other reasons, we thought it best to lay down what we believe to be the safer rule. And while we do not intend to elaborate upon this question, we will quote from Jones on Evidence, sec. 388, pocket ed., as follows:
"The question of damages is often so intimately connected with that of the value of property that it becomes necessary to consider whether expert witnesses may ever give their opinions as to the damages which a party has suffered in a given case. On a principle *526discussed in another section it is evident that, if the witness may give an opinion as to damages, the practice is an exception to general rules, since this is a question for the determination of the jury. Undoubtedly it is the general rule that witnesses cannot give their opinions as to the amount of damages suffered in a given case. But there is a class of cases in which there is a decided conflict of authority as to the admissibility of opinions as to the amount of damages in condemnation proceedings. The courts of many of the states, perhaps a majority, hold that in such cases witnesses cannot state the amount of damages sustained thereby, on the ground that the amount of damages is the very subject referred to the jury. These courts confine the witnesses to a statement of the value of the property before and after its condemnation.” (See authorities cited.)
It is also urged that the former opinion was errroneous in holding that it was improper to permit the plaintiff to testify as to how much, on an average, he made on his entire ranch for five years before the alleged damages were sustained. Plaintiff’s ranch contained 940 acres. Let us assume that 250 acres of the very poorest land owned by plaintiff was damaged, and that the remaining 690 acres was very fertile and produced enormous crops of great value, could it be said that the method sought to be adopted by plaintiff to prove his damage would be the correct one? We think not. This illustration may be overdrawn; in fact, we think that the land alleged to have been damaged was about the best owned by the plaintiff, but it serves to show why the contention of counsel is not sound. While under some circumstances it is possible that it might be proper to resort to the method alluded to for the purpose of proving the value of land, it was certainly not proper under the circumstances of this case.
The question in this case upon which all others turn is: Did the Spragg, Alcorn & Bewley dam cause a deposit of silt and debris in the bed of the Walker River so as to *527produce the overflows complained of? In support of the contention of respondents, counsel presented an elaborate discourse on hydraulics, and diagrams prepared by an engineer. We have read and considered these with a great deal of interest. We think we can dispose of all that is said by the statement that the matter produced does not deal with situations similar to those at bar. The circumstances are so entirely at variance from the ones in the case under consideration that we receive no assistance from them in determining this case. But, to reiterate our former conclusion, no matter what view we reach as to the point where backwater from a dam will cause a deposit of sediment, there is one physical fact which cannot be ignored or disputed, and that is, if we concede all that is contended for by respondents as to the effect of a dam in causing the deposits of sediment and debris, there is no way of escaping the conclusion that if the Spragg, Alcorn & Bewley dam was causing a deposit above it, the very same process was going on above the Merritt dam, which was 4,000 feet upstream from the Spragg, Alcorn & Bewley dam. Of course, it is contended by respondents that the Merritt dam was washed out. True; but it was rebuilt immediately, and, so far as appears, was ever thereafter maintained, though it was so covered with sand that it was not seen after 1906. But when we bear in mind that the Merritt dam was at least eighteen inches in height, that it was 4,000 feet higher up the stream than the Spragg, Alcorn & Bewley dam, and that the river had a fall of about one foot to the thousand, it will be seen that the Spragg, Alcorn & Bewley dam had to be five and one-half feet in height (a height never claimed for it) before the backwater from it would reach the top of the Merritt dam. This is a law of physics that no evidence can overcome.
This opinion is to be read in connection with what was said in the original opinion.
It is ordered that the judgment and order appealed from be reversed.