plaintiff, and that his estimate was made about the time of the trial, and not at the time of sale, and was therefore immaterial, irrelevant, and incompetent.

The property was pointed out to the witness by Porter, who knew it. That was a sufficient identification. While the estimate of value was not made at the very time of the sale, it was made at a time not remote from it, and although not conclusive as to the value, it was not immaterial, incompetent, or irrelevant, since it tended to throw some light upon the question of value, one of the matters in issue.

One of the questions put to Wagstaff, another witness, was not answered, the court sustaining the objection made. The other question asked him sought to elicit information as to the number of paying subscribers of the newspaper when the witness sold it to the defendant, in 1887, some time before the sale to the plaintiff.

Conceding without deciding that the evidence was immaterial, yet it could not have harmed the defendant. He only claims, in his answer, upon information and belief, that he had more than 333 paying subscribers, how many more is not stated. In his testimony upon the subject, he does not fix the number of such subscribers, or claim there were more than 333. Neither does he attempt to do so by his witness Medley, who, he says, knew more about the business than he did. While Hanscom, whose statement, which is not now claimed as immaterial, is derived from the defendant's book, and is not controverted, states that there were 338 paying subscribers in May, June, and July, 1887, a short time after the sale by Wagstaff to Drullard.

The court modified instruction 1, first asked by defendant, by making it read that fraud must be established by "a preponderance" of evidence, instead of by "clear and convincing evidence," but elsewhere, at the request of the defendant, the jury was instructed: "Before the plaintiff can recover in this action, the evidence

must be clear and convincing so as to satisfy your minds by a preponderance of evidence,

"1. That the alleged frauduler representations, or a substantial part of them, were made by the defendant. "2. That such representations were false.

"3. That they were made with the intent to deceive the plaintiff and induce him to enter into the contract. "4. That they did so deceive him and induce him to enter into the contract.

"5. That the plaintiff was damaged thereby. Unless each of these facts is shown to your satisfaction by a preponderance of evidence, you should find for the defendant."

The third instruction, first asked by the defendant, is:"Plaintiff cannot recover in this action unless he was deceived by the alleged representations, and if the means of knowledge are at hand equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived." The court added: "Unless he was induced by the trick or misrepresentations of defendant not to make such inspection."

A man may perhaps be able to discover for himself what he ought to know if left to his own devices, but where he is induced by the artifice of another not to use his opportunities, it would seem hardly fair that the one using the trick or misrepresentation should remain protected. The court below evidently thought the evidence warranted the modification, and we cannot say that it was wrong in its conclusion.

Instruction No. 2 for defendant was modified by inserting the words, "unless the defendant knew or had reason to believe they were untrue." The language was added to an instruction which told the jury that if the representations made to the plaintiff as to the value of the property sold was untrue, yet defendant would not

be liable if the defendant professed to rely on the knowledge of others and gave the source of his information, which plaintiff consulted and found to be true. If the defendant had any reason to know that such representations were untrue, the fact that he gave the sources of information, and did not profess to be informed himself, would not absolve him. His conduct would simply mislead the plaintiff to his prejudice, and must have been willful if the defendant had reason to know that the information which the plaintiff should obtain would be untrue. The modification is in accordance with the provisions of section 1710 of the Civil Code, and of the rule laid down in Davidson v. Jordan, 47 Cal. 353, where it is said, with reference to a similar affair, "representations made in that manner cannot be said to be false or fraudulent unless Frank knew or had reason to believe them to be untrue."

Instruction No. 5, given for the defendant, where it reads that the jury "cannot find for the plaintiff in any sum greater than the actual damage proved by a preponderance of the evidence in the case to have been sustained by the plaintiff" states the correct rule as to damages, and the jury cannot have been misled as to that matter.

The appellant, in his brief, declares that he refrains from pointing out specifically the imperfections claimed to exist in the instructions, but says that the whole effect of them as given was to mislead the jury, and cause it to decide the case on erroneous views of the law, and that the principles of law denied to the defendant are too well known to require citation of authorities.

We have examined the instructions as given, and have become satisfied that, taken as a whole, they could not have misled the jury, and that the law was properly given under the pleadings, facts, and circumstances as shown in the record. This is sufficient, as held in many (People v. Tomlinson, 66 Cal. 397.)

cases.

We advise that the judgment and order be affirmed.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT.-For reasons given in the foregoing opinion, the judgment and order are affirmed.

Rehearing denied.

[No. 12298. In Bank.-May 23, 1889.]

COUNTY OF
OF YUBA, RESPONDENT, V. THOMAS
CLOKE, ADMINISTRATOR, Appellant.

HYDRAULIC MINING-SALE OF WATER-INJUNCTION.-The business of hydraulic mining is not per se unlawful or necessarily injurious to others, and the sale of water to be used in such business is lawful, and cannot be enjoined on the ground that such business will be in fact so conducted as to work injury to others, if it is not distinctly averred that the water was sold with a knowledge that it was to be used in such manner as to work injury to the property of the plaintiff. (BEATTY, C. J., dissenting.) NUISANCE-IMPROPER USE OF PROPERTY SOLD.-The sale of property which is put to an improper use after it passes from the seller's control is not analogous to a case of permitting on's property to be used for an omproper purpose injurious to others. A party furnishing material to another, to be used in conducting a lawful business, cannot be held for damages or enjoined on the ground that the business is thereafter so conducted as to work injury to others. PLEADING INJUNCTION-DISSOLUTION.-When the complaint does not state a cause of action, an order refusing to dissolve an injunction is erroneous for that reason; and if facts pertaining to the knowledge of the defendant, which are essential to the cause of action, are alleged upon information and belief in the complaint, and are positively denied under oath in the answer, the injunction should be dissolved.

APPEAL from an order of the Superior Court of Yuba County refusing to dissolve an injunction.

The facts are stated in the opinion of the court.

C. W. Cross, and J. H. Boalt, for Appellant.

Equity cannot enjoin the sale of articles because they may be used by the vendee to the injury of others.

Equity enjoins the one who directly commits the injury. Cooley on Torts, 68, 70, 77, and notes; Bigelow on Estoppel, 278; High on Injunctions, sec. 537; 1 Hilliard on Torts, 632; Penn v. Wheeling, 18 How. 429; Wilson v. Black Bird etc., 2 Pet. 250; Bristol v. Water Co., 42 Conn. 403.) A bill in equity to restrain a nuisance only lies against those who at law would be liable to respond in damages. (Wood on Nuisance, sec. 795.) The sale of water is subject to the regulation of the state, and the owner is bound to sell to all at the established rates. (Const., art. 14, sec. 1; Stats. 1885, p. 98.) An injunction granted on allegations made on information and belief will be dissolved when these allegations are positively and explicitly denied by the answer. (High on Injunction, sec. 1525; Hiller v. Collins, 63 Cal. 235.)

E. A. Forbes, A. L. Hart, and E. A. Davis, for Respondent, cited Woodruff v. N. B. G. M. Co., 9 Saw. 441; People v. Gold Run D. & M. Co., 66 Cal. 138; 56 Am. Rep. 80; Fish v. Dodge, 4 Denio, 311; 47 Am. Dec. 254; Elwig v. Jordan, 53 Ind. 21; Grady v. Wolsner, 46 Ala. 381; Little v. City of Madison, 42 Wis. 643; 24 Am. Rep. 434; Marsan v. French, 61 Tex. 173; 48 Am. Rep. 272; Carson v. Godley, 26 Pa. St. 111; 67 Am. Dec. 404; People v. Irwin, 4 Denio, 129; Pickard v. Collins, 23 Barb. 460; Neale v. Osborne, 15 How. Pr. 81; Wheeler v. Gilsey, 35 How. Pr. 143; Stimson v. Putnam, 41 Vt. 244; Poertner v. Russell, 33 Wis. 193; Blood v. Martin, 21 Ga. 127; Martin v. Whetbridge, 11 Md. 128; Wood on Nuisances, sec. 821; Gardner v. Newburg, 2 Johns. Ch. 162; 7 Am. Dec. 526; Pumpelly v. Green Bay Co., 13 Wall. 166; Osborn v. United States Bank, 9 Wheat. 139 et seq.; Ex parte Martin, 8 Eng. 198.

WORKS, J.-This is an appeal from an order refusing to dissolve a temporary injunction. The motion to dissolve was made upon the pleadings and the minutes of the court.