Field, C. J. and Baldwin, J. concurring.

This is an action to recover damages for damming up and diverting the water of certain lakes in Nevada county. The complaint is in the usual form in such cases, alleging a right by appropriation in the plaintiffs, and an improper interference with that right by the defendants. The averments of the complaint are controverted by the answer, and a prior and superior right asserted in the defendants. It can hardly be expected that we will undertake the task of a critical examination of the testimony for the purpose of determining whether, upon the weight of the evidence, the verdict was right or wrong. We have so frequently declared the rule upon this subject, it is unnecessary to repeat it again. It is contended, however, that there was no conflict of testimony upon the question of the priority of the rights of the parties, and that upon this point the verdict is entirely unsupported by evidence. If this be true, it, of course, disposes of the case.

Both parties claim the water for mining purposes, and the right of each is based upon the construction of a ditch by means of which it is alleged that the appropriation was effected. It was shown that the plaintiffs, sometime in June, 1853, posted certain notices claiming the water of the Middle Tuba river and its tributaries, and stating their intention to construct a ditch, or flume, and appropriate the same for the purposes mentioned. It was further shown that, in the following month, they commenced their surveys on the contemplated line of the ditch, and that these surveys were, in due course of time, prosecuted to completion, and followed up by the actual construction of the work. It is claimed that the plaintiffs did not prosecute their enterprise with sufficient diligence, and that their rights do not, therefore, date by rela *274 tion from the commencement of their operations in 1853; but the question of diligence was necessarily passed upon by the jury, and their verdict is conclusive. It is not pretended that the defendants' did any act towards the construction of their ditch until the summer of-1854, but evidence was introduced for the purpose of connecting them with a right to the water of the lakes in question, claimed by other parties, who had put up notices of their appropriation early in July, 1853. Irrespective of any question as to the validity of this claim, we think the conclusion of the jury fully justified by, and in strict conformity with, the evidence. The notices of the plaintiffs claiming the same water, were as valid and effectual as the notices of these parties could have been, and the proof is that they were first posted.

It is proper, in this connection, to notice another question, which is discussed at some length in the briefs of counsel. There are three lakes, the water of which constitutes the subject of this controversy. They are situated one above the other, and discharge their water into the Middle Tuba river through the same channel. This channel is about one mile in length, and is called “ lake stream.” The quantity of water discharged varies with the seasons. Sometimes the stream is a torrent, and at others, it is almost or quite dry. The defendants, for the purpose of creating a supply of water for their ditch during the summer months,'erected a dam at the outlet of each of these lakes, by which means it was converted into a sort of reservoir, from which the water was drawn as their necessities required. It is contended that, under the circumstances, the erection of these dams was justifiable and proper, and that the great value of the lakes as reservoirs is a sufficient justification for injuries resulting to the plaintiffs. We are aware of no principle of law upon which such a position can be maintained. If the injuries to the plaintiffs were of a trivial character, they should, perhaps, be considered damnum absque injtvria; but a comparison of the value of conflicting rights, would be a novel mode of determining their legal superiority.

The question whether the defendants had a right to turn into the lake water obtained from another source, and take out the quantity thus turned in, does not properly arise in the case; for it does not appear with sufficient certainty that any water was so turned in by them during the period in which damages are alleged to have accrued.

We see no error in the instructions of the Court. Those to which objections are principally urged, relate to the validity of the claim to *275 the water of the lakes purchased by the defendants. The evidence in relation to this claim is perfectly plain and uncontradictory, and, we think, shows conclusively that the claim was invalid, and without the semblance of law to support it. The water was not claimed for any useful or beneficial purpose, or in" contemplation of a future appropriation for any such purpose, by the parties claiming it. It was a bare claim; for no other object, that we can discover, than that of speculation. The Court would have been justified in instructing the jury to disregard it entirely.

Judgment affirmed.