By the Court,
Talbot, J.:
Plaintiffs sued to recover damages claimed to have been caused by the overflow of water from defendant’s ditch onto plaintiffs’ three lots in the town of Sparks. The ditch had [252]*252been used for thirteen years, and the plaintiffs had erected a house upon and used the premises for about three years prior to this suit. The old right of way grade, and track of the Central Pacific Railway Company passed through the lots, and the defendant’s drain ditch crosses them diagonally. After the track was straightened and moved to another place a few years ago, the plaintiffs and their grantor leveled the ground and filled in the excavation thereon at the sides of the old grade. The plaintiffs erected a house there about twenty-five feet in width by fifty feet in length, one end of which extends across the ditch, and underneath the house they constructed a cellar which comes within five to nine feet of the ditch. In the complaint they demand a total of $1,013 damages and an injunction. They allege that during the spring and summer months of the years 1905, 1906, and 1907 defendant allowed moss and weeds to grow and remain in the ditch and other débris to accumulate there, upon, above, and below plaintiffs’ premises to such an extent that during each of those years the water in the ditch overflowed the banks into, upon, and over the plaintiffs’ premises and stood stagnant upon plaintiffs’ garden of vegetables and yard of trees, and filled up and stood stagnant in the cellar, "and thereby caused an offensive stench and unhealthy and unsanitary odor to arise and surround and fill plaintiffs’ dwelling-house and the rooms therein, making life extremely uncomfortable and almost unbearable, to the plaintiffs’ damage in the sum of $600; that because of the flooding of plaintiffs’ premises the ground under plaintiffs’ dwelling-house was soaked and made so soft that the house settled and sank down to such an extent that the plaintiffs have been compelled to expend for labor and materials to prevent the settling and sinking of the house $169; that the overflow of the waters destroyed elm trees belonging to the plaintiffs to their damage in the sum of $98 and vegetables to the yalue of $146.” There was a verdict rendered by nine of twelve jurors, and judgment in favor of plaintiffs for $576, from which, and an order denying a motion for a new trial, the defendant has appealed.
The most important one of the numerous assignments of error is that the evidence fails to support the judgment. In [253]*253this connection we first consider to what extent, if any, the defendant is liable on the principal item for which damage is claimed resulting from water in the plaintiffs’ cellar and the consequent unpleasant and unhealthy odors and the settling of the house. It is clear that the defendant is entitled to maintain its ditch there and to have water flow through it to the extent of its capacity or in the volume it flowed during the many years which defendant owned and used the ditch, covering a period much longer than the statute of limitations, prior to the time that the town was laid out or the lots occupied by the plaintiffs. (Ennor v. Raine, 27 Nev. 178.) It appears from the uncontradicted evidence as introduced by the plaintiffs and by the defendant that the plaintiffs planked up the sides of the ditch to a width of four feet and three inches, thereby reducing its width about one-half on top, and that they placed the timbers to support the house about one foot from the edge of the ditch after it had been made narrower, which timbers so placed would have been in the ditch if its width had not been so reduced. The engineers estimated that the bottom of the cellar was about one foot to fourteen inches higher than the bottom of the ditch, and that the banks of the ditch under the house and opposite the cellar were two and one-half or three feet high.
It is shown and undisputed that, during the irrigating season and that part of the year for which damage is claimed cellars in the neighborhood on ground of about the same and greater elevation were flooded by percolating waters; that in laying water pipes, setting fence posts and electric poles, and planting trees in that vicinity water was found two and two and one-half feet from the surface. This condition was shown to exist in the street and in other blocks at places more remote from the ditch than plaintiffs’ cellar and lots. There was testimony that seepage water came to the surface and stood in the street or road about fifty or one hundred feet easterly from plaintiffs’ place. It is not denied that these premises are on low ground, and, after examination of all the testimony given during the trial, none is found which raises any -doubt that .if the depressions on these lots were ever leveled up as high as the ditch, the new earth in them settled so that they were [254]*254lower than the surrounding country, and that water running or seeping into them would remain there. The plaintiff said that water would run up to his house and stand there like a lake.
There is no evidence adverse to the conclusion that water percolated from the ditch or from the soil into the cellar. True, the plaintiff stated that there was no water in the cellar in a hole he dug in December; but this is not out of keeping with the testimony of witnesses for the defendant that the water rises in that vicinity during the irrigating season and recedes later, which is usual in many other localities. In the dry months a few inches of water in the bottom of the ditch ■would be lower than the cellar; but when the ditch filled the water in it would be considerably above the bottom of the cellar, into which it -would naturally seep if the surrounding soil itself were not saturated with percolating water. The plaintiff testified that water seeped from the ditch into the cellar, that some of it ran over the banks of the ditch, and that when the ditch was mowed and cleaned out the water receded. All this may be true, and still the plaintiff may not be entitled to recover.
The defendant had the right to convey at least as much water in the ditch across the plaintiffs’ lots as the ditch carried before there was any interference with it by the plaintiffs. It was only liable to keep the ditch in such clean condition and repair below the plaintiffs’ premises that no water would have escaped over the banks if the plaintiffs had not narrowed or changed the ditch, and the defendant could keep it filled up to its former high-water mark. Following the practice of former years, the ditch was cleaned in the spring, and the moss and weeds mowed out of it in the summer, during each of the three years for which damages are claimed. By excavating the cellar within a few feet of the ditch and placing the foundations of the house on its banks and in the cellar at the time of the year when the ditch was dry or carried only a little water, plaintiffs acted at their own risk, and defendant would not be liable for injury caused by water seeping through the soil from the ditch or adjacent land into the cellar after the ditch became■ filled with water in the irrigating season. [255]*255The cellar and timbers on which the house stood were placed so close to the ditch as to encroach upon a reasonable width for seepage along defendant’s right of way acquired by prior use. If the defendant were liable under these conditions, the plaintiffs and others could excavate cellars or lay foundations for buildings at the edge of the ditch along its course and deeper than the ditch and recover damages for any injury caused by water percolating from the ditch, resulting in the deprivation of its use by the defendant and the loss of its vested right.
Defendant is liable for any damage caused by overflowing water which would have overflowed if the plaintiffs had not made any change in the ditch; but defendant is not liable for any overflow caused by the plaintiffs narrowing the ditch or lowering the banks, although, if the defendant had kept the ditch better cleaned it might have carried through without injury to the plaintiffs a volume of water less than the ditch originally would have carried. The plaintiffs were at liberty to change the ditch to a flume, pipe, or culvert so long as they did not lessen its capacity nor interfere with the flow as required for the beneficial uses or purposes of the defendant ; but they cannot recover for injury resulting from any change in the ditch made by them. If the defendant so neglected to clean the ditch that a part of the water which overflowed into the plaintiffs’ premises would have overflowed if the plaintiffs had not changed the size of the ditch, the burden of proof is upon the plaintiffs' to show how much damage, if any, was occasioned by that part of. the overflow. At least a part of the overflow was caused by the narrowing or lowering of the ditch by the plaintiffs, and they cannot recover for any damage caused by that part. That the plaintiffs reduced its capacity by narrowing it is shown without contradiction, and that they further reduced its capacity by lowering its banks at or near the end of the flume seems almost conclusive under the evidence.
The testimony of the plaintiff that the water ran through after the moss and weeds were mowed out of the ditch, without showing the volume of water at that time, and the testimony of the plaintiffs’ engineer, not based on any figures [256]*256taken in connection with his survey, that be believed the water would run through, can have little, if any, force against the testimony of the plaintiffs and their witnesses that the water ran over the banks of the ditch on the premises, indicating that the ditch was lower there than at other places, and the testimony on the part of the defendant that the water never ran over the banks at that place before the plaintiffs changed the ditch, and that the water did not run over the ditch at other places at the times during which plaintiffs claim to have been damaged. Considering that it is shown that the ditch was narrow and low where it crosses the premises, it does not appear from the evidence that the water would have overflowed there if plaintiffs had not reduced the capacity of the ditch and it had not been kept in better or cleaner condition by defendant, and consequently the overflow from the ditch where it crossed the lots may have resulted from the plaintiffs’ own acts.
As air illustration of the evidence in this regard, Mrs. Malmstrom, one of the plaintiffs, testified:
Q. Where did it come 'from? Above your premises’ on your premises, or below your premises? A. On both sides.
Q. What do you mean by that? A. Both sides of the ditch.
Q. Did it flow out — I mean where, with reference to its being above your premises here, or on the lots, or down here (indicating) ? Where did it come over the banks? A. Right on the lots.
The brother of Mrs. Malmstrom testified: A. I meant the water was running over the ditch about the height of two inches.
Q. How long a space on the ditch was the water running over that way? A. It was running over mostly here by the house, and down this way (indicating).
Q. And upon which side was it running? A. On both sides.
Q. Was it escaping over the ditch rapidly? A. Not so very rapidly, because the water does not flow very rapidly.
Q. Where did it go to? A. Run on the land there.
Q. Well, did the water that was running over the ditch get back into the ditch further down? A. No, sir.
Q. Where did it go then? A. Stayed right there.
[257]*257Q. .Just stayed on the land. In other words, you mean to convey the idea that it' backed up over the banks of the ditch onto the land, about two inches above the bank of the ditch, is that what you mean? A. Yes.
Q. Now, about the north side of the ditch? A. Well, there was water running out on the north side, too.
Q. Did it remain upon the land also, or did it escape from the land? A. No, it remained on the land. It was all standing water, you know.
Q. And that was the same on the south side of the ditch; you mean to convey the idea that it backed up over the back of the ditch and stood there, is that right? A. Well, it looked as though it stood there; of course, it was pretty near all level, the ditch.
After the defendant had presented its evidence and its engineer had stated on the stand that the shallowest place in the ditch was at the lower end of the flume, where it was one and six-tenths feet deep at a point about half-way between the house and the fence on the plaintiff’s premises, and where it would overflow if the ditch were filled to its capacity in other places, the plaintiff testified in rebuttal, as he did previously, that the water had run over the ditch at a point below and about fifty feet east of his lots, and had flowed back onto them; but this was not necessarily a denial of his original testimony 'that the water had flowed over the banks of the ditch where it crossed the lots, as had been testified to by his other witnesses. For the water to flow through the ditch across the lots and over the bank fifty feet beyond, and from there back up over the banks of the ditch on the lots where it is conceded to have overflowed, without first rising over the banks of the ditch on the lots, appears impossible. The answer of a witness, induced by skilful cross-examination, that the water if obstructed or raised would overflow at the upper end of the flume first, after he had testified that by his survey the flume was much lower at the lower end, is not convincing that the water would run over at the higher end first, nor that the plaintiff did not lower the ditch at the lower end of the flume so that the water ran over.
Under these circumstances, we are unable to say that there [258]*258is any substantial evidence contradicting the testimony given by defendant’s engineer and witnesses that the ditch is low on the lots of plaintiff where he had reduced its width and boarded its sides, leveled its banks, and planted vegetables within three feet of its edges. If it were admitted that the banks of the ditch had not been lowered, the reduction in width conceded to have been made by the plaintiffs was sufficient to largely reduce its capacity, and it is not shown that anything was done to offset this reduction. The fact that the water overflowed there leads to the conclusion that the banks were not raised there, or raised enough, by plaintiff to overcome the reduction in width. Plaintiff’s engineer, who had made an examination and taken a number of elevations, testified that he believed that the ditch would carry through the lots as much water as would pass through the culvert or bridge a few feet above plaintiff’s house; but he gave no figures on which to base his conclusion. Such an opinion cannot avail against the testimony of the plaintiffs and their numerous witnesses that by actual demonstration the ditch failed to carry the water across the lots without overflowing. The fact that the water ran over the banks on the premises indicates that the ditch was lower there than at other places, notwithstanding the mere opinion of any witness to the contrary, for the stubborn fact that water will seek its level and run over a low place in the bank first must control. If the plaintiff at the time of boarding the ditch and making it narrower digged it deeper, this would not materially add to its capacity if the additional depth which he gave it was lower than the bottom of the ditch further down on its course. If the ditch was only one and six-tenths feet deep at the lower end of the flume, as estimated by the engineer, it may have been made lower at that point and filled in with the wash or sediment, which would have a tendency to bring it up on the bottom to a level or uniform grade. If the water receded after the ditch was cleaned and the moss cut out, this does not prove that if the moss had not been cut out the water would have overflowed if the ditch had not been changed by the plaintiffs. If its capacity had been reduced one-half across the-lots by narrowing the ditch and lowering its banks, [259]*259it is quite possible that cutting out the moss would allow whatever water was there to recede and flow through, but still would not allow the passing of enough water to fill the ditch to its original capacity, which defendant was entitled to have flow without becoming liable.
It appears that at least, a part of the injury for which the plaintiffs demand the greater part of the damages sought to be recovered was caused by their own acts in excavating the cellar and placing the foundations of the house so dangerously close to the ditch, or on such low and wet ground, that the cellar was flooded and the earth soaked and softened under the foundations by seeping and percolating water which might have come into and stood stagnant in the cellar and softened the ground and settled the foundations if the ditch had never overflowed its banks. If the defendant were holding for any injury resulting to the plaintiffs from their own acts under these circumstances, the owners of ditches that traverse the lands of others would have little protection fbr their prior rights. If it be shown that some part of the water which flooded the cellar or overflowed the ground came over the banks of the ditch lower down than the plaintiffs’ premises, or over the banks on his lots, and that such overflow was not caused by any acts of the-plaintiffs in changing the size of the ditch, still the burden of proof would be upon the plaintiffs to show bow much damage occasioned by .such overflow was caused by the defendant, which damage would have to be separated from that caused by overflow from the ditch by reason of the reduction of it's capacity by the plaintiffs, for which they could not recover. There was a failure to make any such showing on the trial, or to prove that the defendant had caused damage in an amount as large as that allowed by the judgment, and consequently the evidence does not support the verdict.
It is urged that the plaintiffs failed to establish any title on which they can recover because the moving of the track amounted to an abandonment of the right of way and caused a reversion of the land to the government, leaving no right in the railroad company to convey to the plaintiffs’ grantor. It is unnecessary to determine whether there is any merit in this [260]*260contention, because plaintiffs’ possession of the lots during the time for which they claim damages was sufficient to enable them to maintain the action.
It is claimed that because the deed to one of the lots was taken in the name of Mrs. Malmstrom and the deed to the other lots was made to the husband there is a misjoinder of parties; but it is shown that the lot for which the deed was made to her was paid for with money earned after the marriage, and it has been held that under these circumstances, if. the deed is taken in the name of the wife, the land is still under the control of the husband the same as other community property standing in his name. (Dimmick v. Dimmick, 95 Cal. 323, 30 Pac. 547; Estate of Boody, 113 Cal. 682, 45 Pac. 858.) Hence if the right to sustain the action depended upon the deeds and was not supported by the joint possession, it would leave the action as maintainable by him, with her merely as an unnecessary or surplus party.
At the tim'e the plaintiff was erecting the house, some objection was made by defendant to having it on the ditch, and he signed the following instrument:
"This agreement made this 6th day of February, A. D. 1905, by and between the People’s Drain Ditch Company, the party of the first part, and A. A. Malmstrom, the party of the second part, witnesseth: That for and in consideration of the mutual promises herein made the said party of the first part agrees that the said party of the second part may maintain his structure now in course of erection in Sparks, Washoe County, Nevada, over and upon the ditch right of way of the said party of the first part so long as the same is not in the judgment of the said party of the first part detrimental or injurious to its interests, and the said party of the second part, and his successors in interest agrees to forthwith remove the same from and off of the said ditch right of way of the said party of the first part forthwith at any time the said party of the first part deems the maintenance of said structure to be detrimental or injurious to its interests and notifies him to do so. People’s Drain Ditch Company, by O. C. Poss, President. A. A. Malmstrom.”
Plaintiff has testified that he did not understand its mean[261]*261ing at the time he affixed his signature, and that he believed it was an agreement on his part to keep the ditch cleaned out under his building. The instrument was objected to as being without consideration and its admission refused. If it be contended that the right to the ditch on the one part and to the lots on the other is fixed by law, and that this paper was without consideration and did not constitute any conveyance or relinquishment, or even license, and whether it be taken as written or as he testified he intended, it was an admission by the plaintiff that the defendant was entitled to maintain its ditch across the premises as then existing, and as such admissible as the recognition of an obligation on the part of the plaintiff to change or remove any part of the building or obstruction placed by him which might impede the flow or injure the defendant.
Objection was taken because the court allowed Mrs. Malm-strom to testify that she was rendered ill by the stench and unhealthy odors arising from the stagnant water in the cellar and on the premises. This evidence was not allowed for the purpose of proving any special damage from sickness, and, whether recovery should be restricted to rental value as contended or not, we think with the limitation placed upon it by the court it was properly admitted under the allegation of the complaint that the "water stood stagnant in pools and caused an offensive stench and unhealthy and unsanitary odor to arise and surround and fill plaintiffs’ dwelling-house, making life, extremely uncomfortable and almost unbearable to the plaintiffs.”
Upon a new trial the evidence relating to damage claimed for any vegetables or crops destroyed should be governed by the rule in Candler v. Ditch Co., 28 Nev. 167, as far as the circumstances permit.
Plaintiffs’ instruction No. 1, given by the court, "that it was not the duty of the plaintiffs to take any steps to prevent any threatened overflow over their property’’ given by the court without qualification, is objectionable in view of the evidence showing that the plaintiffs had reduced the capacity of the ditch, for it became incumbent upon them to restore the size of the ditch so that it would carry as much water [262]*262across their premises as it would have conveyed when they went there.
The following, plaintiffs’ instruction No. 12, is also objectionable and should not have been given: "You are instructed that the doctrine of contributory negligence is not applicable to cases of this nature if you believe that the defendant had knowledge of the danger to plaintiffs’ premises, and could have prevented the injury; and under such conditions no duty would rest upon the plaintiffs to take steps to avoid the consequences of defendant’s acts or omissions.”
If the doctrine of contributory negligence as understood in its technical sense by lawyers is not applicable, it was unnecessary to refer to it in the instructions. It may have tended to confuse and mislead the jury. Neither this nor any other instruction should be given upon another trial which would intimate to the jury that the plaintiffs would have to bear themselves, and could not recover from the defendant for, injury resulting from the acts of the plaintiffs in narrowing the ditch or lowering its banks, or their negligence in failing to restore its capacity so that it would carry as much water as it did before plaintiffs changed its size; but, on the contrary, it will be proper to instruct the jury that the plaintiffs cannot recover for any injury which resulted from such acts of negligence on their part. The instruction follows too closely language used in the opinion in Shields v. Orr Ditch Co., 23 Nev. 354, which the court may not have felt at liberty to disregard during the hurry of the trial, but a part of which, after careful consideration, appears to be dictum or not applicable to the facts in the present case. It was said in the decision there: "An instruction also was asked to the effect that the plaintiff should have exercised ordinary care to have avoided the consequences of defendant’s acts, and failing to do so the parties were in mutual fault. The doctrine of contributory negligence is not applicable to cases of- this nature where the defendant had knowledge of the defects of its ditch and could have prevented the injury.”
The facts are so materially different as to make the two cases widely distinguishable. There the water leaked through the banks of the ditch on a rocky hillside and injured the [263]*263crops of the plaintiff, who had not narrowed or lowered, or reduced the capacity of, the ditch or caused or contributed to the damage, and who was not guilty of contributory or other negligence.
By narrowing or lowering or reducing the capacity in the dry season of the ditch involved in this case where it crosses his premises, and failing to restore its capacity at the time of high water, the plaintiff became guilty of negligence in not avoiding the consequences of his own acts, for which it would not be just to allow him to recover. When using the language quoted from the Shields case, Justice Belknap was considering a proposed instruction to the effect that the plaintiff should have exercised ordinary care to have avoided the consequences of the defendant’s acts, and not the plaintiff’s own acts-, which are involved here, and which raise a very different question, and it was held that the instruction was properly refused.
The judgment and order of the district court are reversed, and the case is remanded for a new trial.