dissenting:
I dissent.
In my judgment, there was nothing presented in the reargument which in any wise attempted to meet the various phases of the case discussed in my former dissenting opinion (40 Nev. 487,153 Pac. 574). There I dwelt at length on the question of the admissibility of the so-called nonexpert testimony.
I am now forced to the belief that the learned justice who wrote the prevailing opinion here failed to grasp the full force and significance of the language of this court in the case of McLeod v. Lee, 17 Nev. 103, 28 Pac. 124. Moreover, it is manifest that the long and eminent line of authority supporting my position in my dissenting opinion and supporting this court in its decision in McLeod v. Lee, supra, has been lost sight of.
How different from the prevailing opinion is the application of the rule laid down in McLeod v. Lee, where the same is cited without comment by Mr. Rogers in his work on the Law of Expert Testimony. (Rogers on Expert Testimony, 2d ed. p. 15.)
In my j udgment the conclusion reached in the prevailing opinion here, as in the prevailing opinion on the former hearing, is not supported by the record as it is before us. *530In the prevailing opinion much stress is laid on the effect of the so-called Merritt dam, an obstruction in the stream some distance above the Spragg, Alcorn & Bewley dam. This obstruction, according to the record, was in the beginning about eighteen inches high. As early as 1884 the bed of the stream had become so filled with sand and sediment from the Spragg, Alcorn & Bewley dam that the Merritt dam was entirely obscured. The record negatives any idea of the Merritt dam having ever been used as a dam after the year 1884. The record discloses that in 1885 it was covered three feet deep with sand. So extensive was this deposit above the Spragg, Alcorn & Bewley dam that the banks of the river in the vicinity of the Merritt dam, which were originally approximately seven feet high above the floor of the river, were by the year 1904 not to exceed three feet high above the newly established bed of the stream. It requires but a reading of the testimony of Feigenspan, Waldo, McLeod, and Warren to determine these facts. Never after 1885, if the record is to be relied upon, could the Merritt dam have become an obstruction to any extent whatever. Never after that date could it have had any effect on the flow of the stream or in the way of obstructing sand or sediment or debris. I am at a loss to know how a foreign body buried three feet below the bed of the stream could affect the flow of water in that stream. The floor of the stream, as it originally existed, had been entirely covered by silt and sand to a depth' of four feet, which covering, according to the record, extended from the Spragg, Alcorn & Bewley dam upstream far above and beyond the Merritt dam as it originally existed.
Whatever may be said as to the acts of respondent in making those certain cuts by reason of which it is contended he contributed to his own injury, some physical facts stand out unanswered. The Spragg, Alcorn & Bewley dam marked the lower terminus, so to speak, of the sand deposit. • This deposit had grown from year to year as the Spragg, Alcorn & Bewley dam was extended in height. The Spragg, Alcorn & Bewley dam was raised *531from year to year as new and higher lands under the Spragg, Alcorn & Bewley ditch were forced into cultivation. The record establishes that there was no deposit of sand below the Spragg, Alcorn & Bewley dam. The record establishes that the deposit of sand and silt in the bed of the stream above the Spragg, Alcorn & Bewley dam had commenced long prior to the construction of the cuts made by the respondent. I am at a loss to know how these cuts could have contributed to the injury of respondent, which injury was caused by the filling up of the bed of the stream, when a part of that filling up had taken place long prior to the creation of the cuts themselves. It was not the Spragg, Alcorn & Bewley dam alone which created the overflow of the lands of respondent. The record establishes that that overflow was caused by the filling up of the bed of the stream by deposits of sand and silt, which deposits were caused by the Spragg, Alcorn & Bewley dam. The record establishes that many of these deposits, and indeed much of the filling of the bed of the stream, were in existence long prior to the time at which it appears the respondent created the cuts by reason of which it is contended he contributed to his own injury.
Assuming for the sake of argument that all that is contended for with reference to the Merritt dam were true, and that it was a contributing cause, the prevailing opinion, in so far as it deals with this phase of the case, is antagonistic to a principle of law so well established as to be considered ruling. Mr. Farnham in his work on Water and Water Rights, vol. 2, p. 1892, puts the proposition thus:
“The owner of the obstruction cannot, however, escape all liability on the ground that other obstructions contributed to the injury, if his own did so, and if his own act was an efficient cause of the injury.”
And the learned author cites the leading case of Chapman v. Thames Mfg. Co., 13 Conn. 269, 33 Am. Dec. 401, in support of the proposition that:
"One who maintains booms in a river whereby the *532water is set back upon the land of an upper riparian owner is liable for the resulting injury, although logs other than his own are stopped by the booms, and form the jams which raise the water, or even where the rise is caused by flood trash.”
The concurring opinion of Mr. Justice Sanders presents three statements novel and revolutionary. To my mind it is a lack of familiarity with the record which causes the learned justice to say that the trial court classified witnesses as experts — "for no apparent reason other than to make it possible for such witnesses to state their opinion and conclusion as an ultimate fact that appellant’s dam was the sole cause of the injury.”
The learned justice apparently overlooked the fact that at the instance and request of the defendant the court gave the following instruction:
"You are instructed that any witness, whether for plaintiff or defendant, who testified as to his opinion as to what caused the overflow of plaintiff’s land, whether he formed that opinion upon investigation made before or after the overflow, or in any other manner, and whether engineer or not, comes within the definition of an expert referred to in these instructions, and his testimony as to such opinion was only admissible because such person was deemed by the court to have expert knowledge on that subject. Such expert testimony is to be construed by you in view of the ascertained facts and the known laws of nature, and you are not bound by the opinion of any witness of plaintiff or defendant if such opinion is contrary to the facts proved or to the known laws of nature. ”
Here was a specific request coming from the defendant in the way of an instruction allowed by the court, in which, at the instance of the defendant, any witness," whether for plaintiff or defendant, who testified as to his opinion as to what caused the overflow of plaintiff’s land, whether he formed that opinion upon investigation made before or after the overflow, or in any other manner, ” was to be considered by the jury as an expert.
I dwelt upon this phase of the case at length in my *533former dissenting opinion. The nonexpert witnesses who testified were in most instances, if not in every instance, citizens of the community who, living in the vicinity, experienced in the conditions there prevailing, actually observed the Walker River and the McLeod ranch during the period in which the latter was damaged by the overflowing of the former. It was not an approximation based on subsequent conditions to which those witnesses testified. It was the physical thing which they, present upon the premises, saw, each detail of which they related. If the assertion contained in the first proposition of the concurring opinion were to become the law, it would revolutionize a phase of the law of evidence which has received the sanction of authority such as is recognized wherever our system of jurisprudence prevails. (3 Wigmore on Evidence, sec. 823; Bonato v. Peabody Coal Co., 248 Ill. 422, 94 N. E. 69.) As to whether the testimony of these witnesses was to go before the jury as the testimony of experts was a question largely in the discretion of the trial court, and the concurring opinion, like the prevailing opinion, fails to designate a single element or instance in which the trial court could be charged with abuse of discretion in this respect.
Any amount of authority might be cited to support the rule under which testimony such as that adduced from these witnesses was admissible, but the rule is so succinctly stated by Mr. Chief Justice Carter, speaking for the Supreme Court of the State of Illinois, in the case of People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 37 L. R. A. n.s. 778, that I deem it sufficient to quote the same at length. The learned justice says:
"Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury. (1 Wharton on Criminal Evidence, 8th ed. sec. 459.) It has been said that a witness must not be examined in chief as to his belief or persuasion, but only as to his knowledge of the fact. 'As far *534as regards mere belief or persuasion which does not rest upon a sufficient and legal foundation, this position is correct, as where a man believes a fact to be true merely because he has heard it said to be so; but with respect to persuasion or belief as founded on facts within the actual knowledge of the witness the position is not true.’ ”
Mr. Lawson, in his work on Expert and Opinion Evidence, page 460, says:
"The opinions of ordinary witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained, or the facts cannot otherwise be presented to the tribunal, e. g., questions relating to time, quantity, number, dimensions, height, speed, distance, or the like.
"The indications themselves ought to be proved; and it is quite true that the jury are authorized to draw their own deductions from them; but no witness can fully present the appearances as they were before his eyes; and to take the testimony of what he saw without his opinion would seldom prove fully satisfactory, and would often be misleading. * * *
"The general rule certainly is that witnesses are to testify to facts, and not to give their individual opinions. This rule, however, has its exceptions, some of which are as familiar and as well settled as the rule itself. When all the pertinent facts can be sufficiently detailed and described, and when the triers are supposed to be able to form correct conclusions without the aid of opinion or judgment from others, no exception to the rule is allowed. But cases occur where the affirmative of these propositions cannot be assumed. The facts are sometimes incapable of being presented with their proper force and significance to any but the observer himself, and it often happens that the triers are not qualified, from experience in the ordinary affairs of life, duly to appreciate all the material facts when proved. Under these circumstances, the opinions of witnesses must, of necessity, be received.”
*535As to the second proposition dealt with in the concurring opinion of Mr. Justice Sanders, namely, the instruction given by the court dealing with the question of primary or proximate cause, I deem it a useless expenditure of time and space to cite authorities supporting the instruction as given. Suffice it to say that it has been sanctioned by this court. (Konig v. N. C. O. Ry., 36 Nev. 181.)
The court gave ample instruction as to the issue of respondent’s acts contributing to the injury. Instruction No. 19, given in behalf of the defendants was a clear and explicit statement directing the jury that—
"If there is no evidence sufficient to show to your satisfaction whether the injury was occasioned by reason of the defendant’s dam or some other cause, then you cannot speculate or guess at the matter, but in the absence of any proof satisfying you as to the actual cause of the injury you cannot render a verdict for plaintiff in this case, but must decide for defendants. ”
Again, defendants’ Instruction No. 23, given by the court, was one which clearly instructed the jury as to contributing causes.
Again, Instruction No. 33 dwelt specifically upon the acts of respondent in making the cuts alleged by the appellant to have contributed to the injury. The jury was there instructed that if they found that the acts of respondent in this respect contribute to his injury, they should find a verdict in favor of defendant.
In instructing juries as to the law applicable to a given case it is not, in my judgment, the duty of the court to give every instruction offered by the respective parties. If one instruction clearly and specifically covers the particular phase of the law applicable to some issue in the case, it is sufficient. Experience has taught that it is not as a rule the lack of instruction which tends to lead a jury astray, but rather the giving of promiscuous, disconnected, contradictory instruction, the volume and extent of which usually amount to a labyrinth in which the jury may become lost.
*536As to the third proposition relied upon in the concurring opinion, assuming for the sake of argument that the damages were excessive, such would be • no ground for peremptory reversal by this court, inasmuch as it is within the province of this court, under its jurisdictional authority, to modify such damages. (Konig v. N. C. O. Ry., supra.)
Let us assume that every element relied upon in the opinion of my learned associates was well taken. Let me ask: What was the efficient cause of the flooding of the lands of respondent?
The history of the Spragg, Alcorn & Bewley dam, as it is related in the record, answers this question. This obstruction in the Walker River had originally served the purpose intended by the original owners of the Spragg, Alcorn & Bewley ditch, namely, to divert the water for the Spragg, Alcorn & Bewley ditch as originally constructed. But the Spragg, Alcorn & Bewley ditch was put into forced service, so to speak, in later years, and lands which were not originally under the ditch were brought under by raising the level of the water in the ditch and throwing a series of dams across the same. To do this, the Spragg, Alcorn & Bewley dam was raised each season and hence made to perform a service unusual, unanticipated, and the effect of which could not be foreseen. In this forced and unusual service, in this new and changing condition of the dam, was the efficient cause of the flooding. The act of forcing the obstruction to perform this unusual and changing service was the efficient cause of the flooding, hence the efficient cause of the injury of respondent, the liability for which, in the language of Mr. Farnham, supra, the appellant should not escape. This condition, evidence supporting it, and everything pertaining to it, was brought to the attention of the jury and the whole matter presented under most elaborate instructions as to every phase of the law pertaining to the case. Under a long line of decisions by this court, the verdict of that jury, based as it was upon *537a conflict of evidence, should not be disturbed by this court.
I refer again most emphatically to the matters dwelt upon in my former dissenting opinion, the assertions here made being only supplemental thereto.