Stiles

Heydenfeldt, J., concurred.

This cause comes up upon the following state of facts :—The Respondent purchased from miners upon “ Lawson’s Ravine,” in the County of Nevada, certain mining claims, situated upon the ravine, which had been held and worked for several years A large surplus of water from the debouching- of foreign ditches, passed through the ravine, which was used by the miners upon the ravine in the washing of the gold-bearing earth and the removal of tailings from their claims. Subsequently to the location of mining claims upon the ravine a portion of the plaintiffs below, erected a dam for the purpose of turning the water into a mill-race, and conducting the water to a mill occupied by them. The respondent and others, mining upon the ravine complained of the erection and retention of the dam as injurious to the free use of their mining property above the dam, by flooding their ground with water, and preventing- an outlet to the tailings from their claims. Notice was given, as appears by the evidence sent up, to the plaintiffs below, to remove or open their dam on account of the injury it was working to those above.

The plaintiffs below not removing their dam,…