The opinion
On Rehearing.
Mr. Justice Moore
delivered the opinion of the court.
' 5. A rehearing having been granted in this cause upon the question of damages alleged to have been sustained by the plaintiff, the writer, in company with counsel for the respective parties, visited the locus in quo and saw quite a volume of water flowing nearly across the defendant’s premises, but entirely sinking into the ground before- it reached plaintiff’s land. It was claimed by defendant’s counsel at the former trial in this court that the damage which plaintiff claims to have suffered was due to his failure to remove the sedimentary deposit in the bed of the stream near the east border of his land, so as to permit the water to flow to his premises from the point where it disappears. From the examination made we conclude that plaintiff’s failure to secure water for irrigation resulted in part from his neglect to keep the channel free from debris. The primary causé of the injury, however, is attributable to the defendant’s diversion of quite a quantity of water which for many years had constantly flowed to plaintiff’s premises, apd in consequence of such change mány valuable fruit trees belonging to the plaintiff had died. Believing that the damages thus sustained could have been very much mitigated by an effort on plaintiff’s part to conduct to his land the water that sunk into the ground, we conclude that the sum of $300 would be a fair compensation for the injury directly traceable to the defendant, and the plaintiff will be allowed that sum, instead of the award made by the trial court.
The defendant’s counsel complain of that part of the decree heretofore rendered by this court which directs the new dam built by their client to be removed sufficiently to permit water to flow to plaintiff’s premises, asserting that to open this dam *123 would necessarily result in washing deep channels in the defendant’s meadow, to his great injury, and they suggest that he be permitted, in ease the former opinion in respect to the division of the water is to be adhered to, to conduct water in irrigating ditches or other channels to supply the quantity awarded. The means adopted by the defendant to bring the water to the premises of plaintiff must be unimportant, so long as the quantity necessary to supply the use is furnished at the proper place. The decree will therefore be that the defendant conduct to the place where the water sinks into the ground, in such channels as he may reasonably select, the quantity of water awarded to plaintiff, or that, upon the defendant’s failure or refusal to comply herewith and to keep the water flowing in such conduits during the irrigating season, the new dam be opened as hereinbefore specified. The plaintiff is hereby licensed to enter the defendant’s premises at the point where the water sinks into the ground to remove the sediment, and to conduct the water from that place to his land, doing as little damage as possible.
The decree of the lower court will therefore he modified in the particulars herein indicated, the plaintiff to recover his costs and disbursement in this court and in the court below.
Modified.