Field, C. J. concurring.

The plaintiffs are the owners of mining claims located in the bed of a creek, and the defendants own claims situated on a hill in the vicinity. The refuse matter washed from the claims of the defendants is deposited upon the claims of the plaintiffs to such an extent as to render the working of them impracticable. The claims of the plaintiffs were first located, and the action is for damages, and for a perpetual injunction.

The case was tried by a jury, and the errors assigned relate to the action of the Court in giving and refusing instructions. The Court proceeded in conformity with the maxim qui prior est in tempore potior est in jure, and there is no doubt that the case is a proper one for the application of this principle. The claims of the plaintiffs are valuable only for the gold which they contain, and the enjoyment of them lies in the use necessary to obtain possession of this gold. To interrupt the use of them for that purpose is to take away the opportunity to enjoy, and to defeat the object for which they were located and taken possession of. That this cannot legally be done is indisputable, and it is to us a matter of surprise that a contrary view should have been made the basis of an appeal *626to this Court. If the rule qui prior est in tempore were not applicable in such cases, persons engaged in mining operations would hold their rights simply at the pleasure of others, and the idea of legal protection would be absurd. The defendants contend that so long as the use made of their claims is not in itself unlawful, its effect upon the plaintiffs cannot be regarded as a cause of complaint. But this position is in conflict with the maxim sic utere tuo alienum non ladas, and we are not aware of any principle upon which it can be maintained. The defendants are entitled to use their claims in a lawful manner, but no use can be considered lawful which precludes the plaintiffs from the enjoyment of their rights. This being the effect of the operations of the defendants, it is clear that their acts cannot be defended on legal grounds. There is nothing in Esmond v. Chew (15 Cal. 137) militating against these views.

Judgment affirmed.