Opinion of the Court-Ailshie, J. the water or sending it down in increased volumes to his injury or at times when the stream would not otherwise be navigable. And this rule is not changed by the fact that a stream cannot be successfully used for logging purposes without such artificial aids to navigation on the ground of necessity." For an exhaustive review of this and kindred questions. see note to the foregoing case commencing at page 710 of vol. 126, Am. St. Reports. It must be borne in mind that what is here said has no reference to water rights acquired by appropriation or the right to flow water through natural channels under appropriation of waters to a beneficial use. It has been repeatedly held in this state that "navigable streams are public highways over which every citizen has a right to carry commerce, whether it be by boats or the simple floating of logs," and that any stream which, in its natural state, will float logs or any other commercial and floatable commodity is for the time and to that extent a navigable stream. (Powell v. Springston Lbr. Co., 12 Ida. 723, 88 Pac. 97; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240; Shepard v. Coeur d'Alene Lbr. Co., 16 Ida. 293, 101 Pac. 591; La Veine v. Stack-Gibbs Lbr. Co., 17 Ida. 51. 134 Am. St. 253, 104 Pac. 666.) It would not be proper or lawful, however, for an individual or corporation, whether acting under a franchise from the state or not, to so increase the flow of a stream by splash-dams or otherwise as to overflow, flood and damage the lands of a riparian proprietor, nor would it be lawful for such person or corporation to, by means of dams or otherwise, so flood a stream and increase its flow at a season of the year when in its natural state it is not capable of floating logs or other articles of commerce as to overflow the banks of the stream or injure or damage the lands of another. (See Kamm v. Normand, 50 Or. 9, 126 Am. St. 698, 91 Pac. 448, 11 L. R. A., N. S., 290, and cases there cited.) Some evidence was offered on behalf of appellant tending to show that the principal damage respondent suffered on account of the overflow and the deposit of logs and debris Opinion of the Court-Ailshie, J. was the result of an unusual freshet in the spring of 1908, and that the splash-dams were all open at that time and were not used for the collection of water or flooding the stream. Appellant therefore contends that the real cause of whatever damage respondent had sustained was the forces of nature and the act of God, for which it is not legally responsible. In support of this rule of law, appellant cites Lamb v. Licey, 16 Ida. 664, 102 Pac. 378. Respondent, however, has shown by his evidence that while he may have sustained damages on account of the freshet, he also was subject to a continuing injury and damages which were the direct result of the wrongful and unlawful acts of appellant. Respondent also contends that the acts of appellant in cutting away the timber and shrubbery along the banks of the stream and in breaking down the banks and impairing his littoral rights and building splash-dams and collecting and turning loose large volumes of water augmented the damages that he sustained from the freshet, and contends that under the rule announced in Axtell v. Northern Pac. Ry. Co., 9 Ida. 392, 74 Pac. 1075, "One who by his wrongful acts augments, diverts or accelerates the forces of nature in such a manner as to injure another is liable in damages therefor." There was abundant evidence before the jury to justify them in believing that much of the damage sustained by respondent was traceable directly to the wrongful acts of appellant. They were also justified in believing that the damage caused by the freshet of which appellant furnished evidence was greatly augmented and accelerated by reason of the previous wrongful acts of appellant. The removal of the timber and growth along the banks allowed logs and debris to float out over the meadows and bottom lands to a greater extent than it could before the timber was removed. But it is contended that the respondent is estopped from asserting this claim by reason of his action and conduct at the time the alterations, changes and improvements were being made in these streams. The acts out of which it is claimed an estoppel arises were merely acquiescence or inaction on the part of respondent rather than any affirmative Opinion of the Court-Ailshie, J. action taken by him. It is not contended that he gave his consent in any manner, and, on the other hand, he admits on the witness-stand that he did not enter any protest or objection to the changes, improvements and alterations that the company made in these streams. He says that his reason for not doing so was that they told him they had a franchise and license from the state, and that he presumed that gave them a right to come on to his premises and do the work they were doing, and that he did not at the time know any better. A very similar question was considered in Monroe Mill. Co. v. Menzel, 35 Wash. 487, 102 Am. St. 905, 77 Pac. 813, 70 L. R. A. 272, by the supreme court of Washington, and the court said: "The mere fact that he made no objection to clearing the bed of the stream from obstructions, or that he may even have assisted therein, does not necessarily establish that he consented that the floatage of the stream should be conducted in any other manner than as provided by the natural flow of the water. The further fact that he may have used the water, as it was sent down the stream by the occasional opening of the dam, during a period of about two years, does not establish his acquiescence in the continued interruption of the natural flow of the water, and amounts to no more than a mere license for a temporary interruption, revocable at will. Such facts do not contain the essential elements of estoppel." That case is a much stronger case on the facts in favor of estoppel than this, and if, under the facts as stated in the opinion, there was no estoppel in that case, there certainly is no element of estoppel in this case. But independent of any authority on the question, it is clear to us that the mere fact that respondent stood by and saw the beds of these streams deepened and widened and cleaned out did not amount to his giving his consent that they might impound the water miles above his place and turn it loose and drive down the stream with great rapidity millions of feet of lumber and flood and overflow his lands and cover them with sand, logs and debris. He had the right to assume that they Points Decided. would use the stream in a lawful manner, and even though they were committing acts of trespass in entering upon his land, disturbing his littoral rights and cutting down timber, he still might have been willing to forego those things, and yet have reason to suppose that they would not commit the further acts of which he now complains in this case. (Eastwood v. Standard M. & M. Co., 11 Ida. 195, 81 Pac. 382.) Something like 125 errors have been assigned in this case, but the briefs do not refer us to the page or folio of the record in which those exceptions are to be found, nor are they argued separately or specifically in the briefs. We have discussed the leading questions which have been considered in the briefs. We have found no error that would justify a reversal of the judgment in this case. The judgment will be affirmed, and it is so ordered. Costs awarded in favor of the respondent. Sullivan, C. J., concurs. (December 10, 1910.) S. C. McDANIEL et al., Appellants, v. A. W. MOORE, Respondent. [112 Pac. 317.] MINING CLAIM-ASSESSMENT WORK-FORFEITURE-Co-owNERS-APPLICATION FOR PATENT-IMPLIED PROMISE-NONSUIT. (Syllabus by the court.) 1. Under the provisions of sec. 2324, Rev. Stats. of the United States, where a co-owner of a mining claim fails to do his assessment work or fails to contribute his proportion of the expenditure required in doing such work, his co-owners who have performed the labor may give such delinquent personal notice in writing or by publication, as provided in said statute, and if at the expiration of ninety days such delinquent should fail or refuse to contribute his proportion of such expenditure, his interest in the claim shall be Argument for Appellants. come the property of his co-owners who made such expenditures, and the defaulting co-owner is not personally responsible for any part of the assessment work, under the provisions of said section. 2. There is no implied contractual relation between cotenants and tenants in common, and one cotenant cannot bind the other without his consent for the expenses incurred in developing or improving their common mining property; but the delinquent cotenant may ratify such expenditure and thereby become liable for his proportional part thereof. 3. The issues made by the pleadings were whether the defendant had performed or paid his part of the assessment work on said mining claim, and whether a patent was issued to all of the parties to this suit for said mining claim by the government, and this appeal must be decided upon the theory of the case made by the pleading and proof. Held, that the evidence shows or tends to show that the defendant failed to pay for his proportional part of the assessment work, at least for the years 1904 and 1905, and for his proportional part of the expense of procuring a patent, and the presumption arising from the issuance of a patent is that all of the requirements of the law in regard to its issuance have been complied with. 4. Held, that the evidence tends to establish that there was an implied promise on the part of the defendant to pay his proportionate part of said expenses. 5. On application for a nonsuit, the defendant is deemed to admit all of the facts which the evidence tends to prove. APPEAL from the District Court of the Second Judicial District, for Idaho County. Hon. Edgar C. Steele, Judge. Action to recover for assessment work done on a mining claim and for expenses in procuring a patent therefor. Nonsuit and judgment of dismissal. Reversed. L. Vineyard, for Appellants. On a motion of nonsuit, "the court has no right to pass upon the weight of evidence; every fact that plaintiff's evidence proved or tended to prove must be taken by the court to be proved. It must be taken in the strongest light as against the defendant." (Purnell v. Raleigh R. Co., 122 N. C. 832, 29 S. E. 953; Hayne, New Trial, sec. 117.) |