Richard

This is an action to abate a nuisance averred to have been caused by the erection of a dam by defendant across a watercourse in Butte county, known as “Little Butte creek,” whereby the water of said creek is caused to flow back upon and submerge the quartz mining claim of plaintiff. The cause was tried by the court, without the intervention of a jury, and written findings filed, upon which judgment was entered in favor of defendant for costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. Plaintiff, who is appellant here, is, and he and his grantors have been, the owners of and in possession of a quartz mining claim situate and being in section 36, township 24 north, range 3 east, Mount Diablo meridian. Plaintiff and his co-owners, in 1870 and 1871, constructed a flume running from said mine about five hundred and sixty-four feet down the bed of Little Butte creek. Said flume was built in the bottom of a rock cut from two to five feet deep, and the top of the rock cut was from three to six feet below the natural bed of the creek. All of said flume, except one hundred and sixty feet of the upper end thereof, is upon land owned by the…