Wiedekind

— This action is brought by plaintiff for alleged damages caused him by the breaking of de *199 fendant’s reservoir, by reason of which a large volume of ■water flowed over and into the mining claim of plaintiff, situated below said reservoir, filling said claim with earth, rock, and timber, and carrying away mining implements and a bridge constructed by plaintiff, and depriving plaintiff of the use of said claim during a period of four months. Plaintiff avers that said dam was poorly constructed, and at the time of the break was in a rotten and decayed condition, and was badly and carelessly attended by defendant, and by reason of such carelessness and negligence it broke away and caused the injuries of which plaintiff complains.

All the material allegations of the complaint are denied by the answer of the defendant.

The cause was tried by a jury, which returned a verdict in favor of plaintiff; and a judgment was entered in his favor for the damages awarded him by the verdict. Defendant moved for a new trial, which was denied, and from that order and the judgment he appeals to this court.

Appellant’s main contention is, that the evidence is insufficient to justify the verdict.…