Bell v. Shultz

Plaintiff had a flour mill run bp water conveyed through a ditch and flume made by him, the water being turned into the ditch by a dam erected by him across a creek. Defendants and others had mining claims on the creek above the mill and dam, and the tailings, slum, gravel, etc., flowing from these claims through defendants' tail race into the creek, covered up the dam and partially filled up the creek and ditch of .plaintiff. Plaintiff then built another dam lower down, so as to turn the water of the creek into his ditch at a point where it was not filled up with slum, etc. Defendants cut away and destroyed portions of this latter dam, and threaten to do so as often as plaintiff rebuilds.

He sues for damages and perpetual injunction. On the trial, plaintiff, haying shown that his ditch was partially filled up by said slum, .etc., asked a witness : “ What effect did the running of slum, etc., by defendants and other miners above, have upon plaintiff's race.” Defendants objected, on the ground that they were not responsible for the acts of other miners. Overruled. Held, that the question was proper; that it might be impossible for the witness to assign any specific effect to the individual acts of those contributing, by the obstructions complained of, to the general damage done plaintiff's race; but that on cross-examination all the facts could be .elicted, and proper instructions would protect defendants from any responsibility, except what they had incurred by their own acts.