Appeal from the District Court of the Eleventh Judicial District, County of Placer.

The parties to this action, are incorporated companies for mining and other purposes. Each company is the owner of a dam and ditch, by means of which, the waters of Bear River are diverted from the natural channel of the stream, and sold and used for mining purposes, and by defendants for the additional purpose of propelling a saw-mill. The plaintiffs were the prior appropriators of the waters of the stream, at the point where their dam, at the head of their ditch, is located. The defendant’s dam' and ditch were constructed subsequently to those of plaintiffs. The ditch of plaintiffs is some forty-eight miles in length, and that of defendants about twenty miles. The waters of the stream, diverted by the dam and ditch of defendants, after being used for mining and milling purposes, are returned again into Bear River, about seven miles above the head of plaintiffs’ ditch, except such portion as is consumed by absorption and evaporation. The jury found, specifically, that plaintiffs, by the act of defendants, had lost twenty inches water per day, for ninety days, during the year 1855, and that the value was one dollar per inch per day. That defendants did detain the water, and cause the same to flow irregularly, and that plaintiffs were damaged by this cause seven.hundred and fifty dollars; that defendants did adulterate the water, and plaintiffs sustained damage from this cause, to the amount of three thousand dollars; that defendants did not materially waste and destroy the water, but used it in a reasonable manner, and with the least injury to the plaintiffs consequent upon its use, and it could not have been used in any other reasonable manner—and that defendants are entitled to the surplus water of Bear River, to the capacity of their ditch. Upon the facts as partly admitted by the parties, and partly found 'by thfe special verdict of the jury, the plaintiffs moved the Court for judgment. This motion was overruled by the Court, and judgment given for the defendants, from which judgment the plaintiffs appealed. The suit was commenced in ¡November, 1855, and judgment rendered in September, 1856.