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

This action >vas commenced May 26th, 1861. Plaintiff averred in his complaint that in 1854 he inclosed with a substantial fence a tract of land containing about two acres, across the road from bis residence, and planted the same with peach and apple trees; and that since said year he had annually cultivated the same with vegetables and strawberries, for the use of his family. That defendant was the owner of a ditch conveying water from Bear River for mining purposes, and passing a short distance above plaintiff’s field; that in 1856 defendant constructed a reservoir, about one half mile above plaintiff’s orchard, across the same ravine on which the orchard bordered, into which defendant turned and accumulated the water flowing from the ditch; that the water flowing in defendant’s ditch contained large quantities of mud and sediment, which settled in the reservoir; that since the summer of I860, defendant had been in the habit once in each week of opening the gate of the reservoir, and allowing the water accumulated therein to rash out and carry with it the said mud and sediment, which water, mud, and sediment flowed over and upon the garden, and injured and destroyed the fruit and destroyed the vegetables; that a part of the fruit trees had already been destroyed, and if defendant was suffered to continue its said acts, the trees would be all destroyed, and the garden rendered unfit for cultivation.

The complaint prayed for judgment for damages and for a peipetual injunction.

The answer averred, that the land of plaintiff was public land, in the mineral region, and contained valuable mines of gold; and that it was situated along and across a ravine, a natural water course, and that for a long time defendant had been in the habit of using the ravine for the purpose of conveying the water of its ditch to mines below, to be used for mining; that the injury to plaintiff’s garden, if any, had been caused by miners digging up the bed of the ravine above iflaintiff’s garden, and by obstructions placed in the ravine below the garden; that defendant was engaged in selling water to miners for mining purposes, and had a right to the use of the ravine as a channel for the conveyance of its water, etc.

The answer also denied all the material allegations of the complaint, except the fact that plaintiff had inclosed his garden and planted his fruit trees in 1854, and that defendant’s reservoir was constructed in 1860.

The jury found a verdict for plaintiff for damages, and the Court decreed a perpetual injunction restraining defendant from allowing the water or mud or sediment from its reservoir to flow down upon plaintiff’s garden so as to injure the same.

The following are the instructions given by the Court to the jury, to which defendant excepted :

“ If the plaintiff was in the possession of his premises before the construction of the defendant’s reservoir, then the defendant has no right to run out the water accumulating therein, carrying with it sand and sediment, on to the plaintiff’s premises, and to Ms injury, and if defendant has done this, you will find for plaintiff".

“ If the plaintiff possessed his premises prior to the appropriation. of the water of the ravine by defendant, then the defendant’s appropriation was subject to the prior rights of the plaintiff, and if this is so, then the defendant is liable for injuries resulting to the plaintiff’s premises from its use of such water subsequently appropriated.”

The following are the instructions asked by defendant and refused, to which refusal defendant excepted:

“ If the jury find that defendant is a company for the purpose of supplying water to miners for mining purposes, and that the premises and ravine mentioned in this case are within the mining district of this State, then the defendant has the right to appropriate, by means of a reservón- or otherwise, the natural waters of Miners’ Ravine, and also the right to the necessary means for such enjoyment.

“ The plaintiff cannot by appropriation of land or otherwise prevent the free flow of water and tailings in a natural ravine situated in a mineral district ; and any improvements created or erected in the channel of a ravine, must be subject to the right of miners upon the ravine, and also the right of defendant to a free enjoyment of its right, and a free and unmolested flow of wrater.

“All miners, and defendant as a company organized for mining purposes, have the right to the free use and benefit of natural water courses and reservoirs, and plaintiff has no right to interfere in any manner with such right, and if by reason of plaintiff’s interference with the free use of the reservoir he has suffered injury, defendant is not responsible.

“ The right to use and enjoy the ravine and its privileges carries with it the right to such privileges as are necessary to the enjoyment of the right.”

The following are the only grounds of appeal set forth in the statement:

“ Defendant’s grounds of appeal are as follows :

“ The Court erred in giving the instructions to the jury which were excepted to by defendant, and also erred in refusing to give the instructions requested by defendant, by reason of which the jury were induced, to render a verdict contrary to law and contrary to the evidence.”