Appeal from the Fifth District.

Action for damages for destroying portions of plaintiff’s dam and for perpetual injunction against future trespasses.

Plaintiff located a flour mill on Wood’s creek in 1854, and had a dam across the creek, above the mill, so as to turn the waters of the creek into a ditch or race dug by him and those under whom he claimed, and leading to and running the mill. Defendants located mining claims on the creek above the dam in 1857, and the tailings, slum, etc., from these claims flowed into the creek and into the ditch of plaintiff. Plaintiff’s ditch having become partially filled with slum, etc., he erected in July, 1860, a second dam lower down on the créele, so as to turn its waters into his ditch at a point where it was not filled up with the slum. From 1857, to the time plaintiff built this second dam, defendants were able to work their claims; but from about two weeks after its erection, defendants could not work their claims in consequence 'of the backing up of the tailings, etc., upon their sluice. There was conflicting evidence as to whether plaintiff’s dam was the cause of backing up the tailings. The creek between the old dam and defendants’ claims had been rapidly filling up for a few years past. Other evidence is immaterial. Plaintiff then offered to show that, in consequence of the filling up of said creek and ditch by the refuse of mining operations thrown in it by defendants and others, it became necessary for him to move his original dam and construct the one lower down; and to this end asked a witness: “ What effect did the running in of slum, etc., by defendants and other miners above have upon plaintiff’s race? ” Defendants objected to the question, on the ground that they had nothing to do with the acts of other miners, and were not responsible for them. Overruled, defendants excepting ; and the witness answered that the effect was to fill up said creek and plaintiff’s original race to a large extent, and render it necessary for him to erect another dam lower down the creek, at a point where his race had not been filled up. Other witnesses gave similar testimony, defendants excepting. Verdict and judgment for plaintiff—a perpetual injunction being granted. Defendants appeal.