majority"> By the Court, Niles, J.:

This case was once before this Court upon appeal, and is reported in 40 Cal. 428, and the judgment in favor of the plaintiff was then reversed and a new trial granted. Upon *221the second trial a judgment of nonsuit was rendered against the plaintiff, and from this judgment and the order overruling plaintiff’s motion for a new trial this appeal is taken.

In the former opinion (which is now the law of this case) it was said, that “to enable the plaintiffs to recover, it should have appeared at the trial: First, that the plaintiffs owned the ground claimed by them; second, that the dam prevented them from working it to advantage; third, alternatively, that the defendants had no title to the bed of the cañon, or if they had, that their.right was acquired subsequent to that of the plaintiffs, or if prior, that the dam was not needed to enable the defendants to work to advantage.”

There is no variance between the facts .presented upon the former and the present appeal, material to the decision of the case. As then, the plaintiffs’ ownership of the mining ground claimed by them, and that the dam erected by the defendant prevented the advantageous working of plaintiffs’ ground, must be conceded. The title of the defendants to the bed of the cañon, and that the right of the defendant was prior to that of the plaintiffs, was admitted by the testimony of the plaintiff Stone, and was not contradicted by any other testimony. There was no testimony tending to show that the dam was not beneficial to defendant, or requisite to the advantageous working of his claims. The declaration of the defendant prior to the construction of the dam, that he would put in a dam that would flood the plaintiffs’ claims, is entirely consistent with the necessity or utility of the structure in the working of the cañon. His subsequent testimony before the Justice of the Peace, that he had put in the dam to flood out the plaintiffs, was qualified by the additional declaration that it was constructed for the further purpose of working the cañón. It is not within the province of a Court to question the judgment of a property owner in the legitimate use of his property, or to determine whether one mode of use would be more beneficial than another.

*222It was clearly shown that the construction of dams by the owners of canon claims for the purpose of working them, was authorized by local customs. This right being conceded, the damage that might be occasioned by such structure to a subsequent locator would be damnum absque injuria.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.

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