MONTANA CO., Limited, v. GEHRING, 75 F. 384

ROSS, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The right acquired by the plaintiff in and to the use of the waters of Silver creek was prior in time to any use of those waters by the defendant company. The right thereto acquired by the plaintiff was for the purpose of irrigating his land. That right could not be interfered with by any subsequent appropriation or use of the waters of the stream by the defendant company.

A t the same time, the plaintiff’s right was not, and could not be, invaded by any subsequent appropriation or use of the waters of the creek which did not impair the use of those waters by the plaintiff, to the extent of their appropriation by him, for the purposes for which he made the appropriation, namely, for irrigation.

The defendant’s subsequent appropriation and use of the waters of the stream was, however, controlled by the maxim, “Sic utere tuo ut alienum non Isedas.” For any injury done to the plaintiff’s land during the time limited by, and with the exception stated in, the instructions of the court below, by the discharge into the stream of tailings or other debris from the defendant’s mill, the defendant was clearly liable. Woodruff v.

Mining Co., 18 Fed. 753, and the numerous cases there cited. • What deterioration in quality would injuriously affect the water for irrigation, and whether or not the deterioration to which the defendant company subjected the waters in question injured the land of the plaintiff, were matters of fact; and those facts, we think, were left to the jury with sufficient clearness by the instructions of the court as given, although the court improperly instructed the jury, in effect, that, if the company used proper care in impounding the tailings from its mill, it would not be liable.

This error was, however, favorable to the plaintiff in error, of which it has no just cause of complaint. Judgment affirmed.