ten times that of the Vilas Ditch. Manifestly, this testimony was not admissible as giving the opinion of experts. (Goldstein v. Black, 50 Cal. 463; State v. Maioni, 78 N. J. L. 339 [20 Ann. Cas. 204, 74 Atl. 526].) The general rule upon all such subjects of inquiry is that where possible the data to establish a given condition or fact must be laid before the court, and if scientific knowledge be necessary to formulate these data into a statement of the ultimate fact to be arrived at, this statement, if it require a special training or skill, may be made by the opinion of experts. (Sappenfield v. Main St. Ry. Co., 91 Cal. 48, [27 Pac. 590]; Parkin v. Grayson-Owen Co., 157 Cal. 41, [106 Pac. 210]; McLeod v. Miller & Lux (Nev.), 153 Pac. 566; Wigmore on Evidence, sec. 1918.) A necessary modification of this rule is that when these data-these probative facts to establish the ultimate fact-may not thus be presented to the court, the opinions of ordinary witnesses become admissible as being the best evidence available. In illustration, if a controversy had arisen between these parties over their ditches and water rights and both ditches before trial had actually been destroyed, leaving no superior data touching size, capacity, and amounts of water, unquestionably the evidence of these witnesses would be admissible as being the best evidence available to establish the fact in controversy. Or, again, where from the nature of the inquiry it is impossible for any witness adequately to present to the court all of the facts, as in cases of identity of appearance, of manner, of size, of color, of weight, and at times of quantity, the opinions of witnesses based upon the impressions that they have received from their observations become admissible. (Wharton, sec. 513, note; Lawson on Expert and Opinion Evidence, p. 3; Rogers on Testimony, 1013.) But in the present case it is apparent from what has already been said that incontrovertible evidence was available to both sides to establish the carrying capacity of the Vilas Ditch. It and its flumes were there upon the ground. Its gradient was susceptible of exact measurement. Therefore what that ditch could carry could be shown to a demonstration. What in fact it did carry was established without controversy by the testimony offered by plaintiff, to the effect that when the water was needed the ditch ran full. When such data can be laid before a court it is universally held to be error to admit mere inexpert opinion. (Conner v. Stanley, 67 Cal. 315, [7 Pac. 723]; St. CLXXIV Cal.-25 Louis etc. R. R. Co. v. Yarborough, 56 Ark. 612, [20 S. W. 515]; Indianapolis Tr. & T. Co. v. Kidd, 167 Ind. 402, [10 Ann. Cas. 942, 7 L. R. A. (N. S.) 143, 79 N. E. 347]; Commonwealth v. Sturtivant, 117 Mass. 122, [19 Am. Rep. 401]; Road v. Leonhardt, 66 Md. 70, [5 Atl. 346]; Mann v. State, 23 Fla. 610, [3 South. 207]; Hurt v. St. Louis etc. Ry. Co., 94 Mo. 255, [4 Am. St. Rep. 374, 7 S. W. 1]; Gulf etc. Ry. Co. v. Fox (Tex.), 6 S. W. 569; Baltimore & O. R. R. Co. v. Shultz, 43 Ohio St. 270, [1 N. E. 324]; Shaw v. Jones, 133 Ga. 446, [66 S. E. 240]; Tennessee Coal etc. Co. v. Kelly, 163 Ala. 348, [50 South. 1008]; American Tel. & Tel. Co. v. Green, 164 Ind. 349, [73 N. E. 707]; American Soda F. Co. v. Hogue, 17 N. D. 375, [17 L. R. A. (N. S.) 1113, 116 N. W. 339]; Keefe v. Armour & Co., 258 Ill. 28, [Ann. Cas. 1914B, 188, 101 N. E. 252]; In re Coburn, 11 Cal. App. 604, [105 Pac. 924].) Frey v. Lowden, 70 Cal. 550, [11 Pac. 838], upon which respondents rely as supporting the ruling of the court admitting this evidence, involved a controversy over the capacity of a ditch. The declaration of this court was that the evidence of witnesses testifying "upon the subject from knowledge acquired by them in thirty years' experience in mining and in measuring and selling water to miners" was admissible. No criticism can be made of this declaration, taken in connection with what we have already said, because while the opinion speaks of such evidence as being "nonexpert," it certainly approaches quite closely to the evidence of witnesses possessing a special skill and knowledge. But that opinion takes no account of the next proposition to which we address ourselves, and that is that the opinion evidence. in this case, when admitted, is manifestly evidence of inferior character and value to the evidence introduced by plaintiff touching the actual physical facts and conditions. And in such a case there comes into necessary application the declared presumption of our law (Code Civ. Proc., sec. 1963, subd. 6) that "higher evidence would be adverse from inferior evidence being produced." Respondents, it will be noted, did not seek to controvert the evidence of the capacity of the Vilas Ditch presented by plaintiff by showing an inaccuracy in its measurements, but contented themselves by offering inferior evidence on the question. And finally upon this subject matter it may be pointed out that there is no necessary conflict in the evidence. It has been said that the capacity of the Loggerhead Ditch seems to have been steadily increased from the date of its first construction until nine or ten years thereafter, when its owners posted their notice of a new appropriation to the extent of two thousand inches measured under four-inch pressure, to be carried by that ditch, and after that until 1905 when the enlargement was completed. Also it has been pointed out that the capacity of the Vilas Ditch was not increased. The testimony of the witnesses for the defendants ranges through all these years. If we assume (herein, of course, not passing upon the weight of the evidence) that the capacity of the Loggerhead Ditch was thus increased until it was finally capable of carrying two thousand inches, then in truth it would have nearly four times the capacity of the Vilas Ditch, and to this extent the estimates of respondents' witnesses would be supported, allowing to the Vilas Ditch the six hundred or 625 inches claimed for it. The fundamental difficulty, however, arises from the fact that the court, compelled to fix the first appropriation of the Loggerhead Ditch at six hundred inches, adopted the method of cutting down proportionately the rights of the Vilas Ditch and by this method allowed it only 120 inches. The method which the court employed plainly grew out of its conclusion that it would adopt acreage as a basis for its water measurement. But in fact and in law, after awarding to the Loggerhead Ditch the first six hundred inches, the water right of the Vilas Ditch was to be determined by reference solely to its own capacity and to the amount of water which, within that capacity, it actually carried (for we repeat that so far as this appeal is concerned the question of beneficial use is not in controversy). It follows herefrom that the finding allowing the Vilas Ditch but 120 inches is unsupported. Nor yet can we find any support for the court's adjudication which, after the award of six hundred inches to the Loggerhead Ditch and 120 inches to the Vilas Ditch, divides the remainder of the flow in the proportion of five-sixths to the former and one-sixth to the latter. The quantum of water to which the Vilas Ditch is entitled is an absolute quantum after the first priority of six hundred inches to the Loggerhead Ditch has been satisfied. It is not subject to increase or decrease beyond that. Nor yet, upon the other hand, is the Loggerhead Ditch entitled to five-sixths of the flow after the quantum of water to which the Vilas Ditch is entitled has been received by it. The Loggerhead Ditch is and can be entitled only to such additional quantum of water over the first six hundred inches as it may have legally appropriated either under its second notice of appropriation or by adverse user, and that is a quantum susceptible of exact ascertainment, which therefore should be fixed by the court. After the determination of these amounts, then, as we understand the case, it is not in controversy but that plaintiff by its Cross Country Ditch is entitled to all of the remainder of the water in the stream. The controversy over the water rights of these parties was substantial. The right which defendants asserted was a priority to two thousand inches of the water of the stream-practically all of it during certain seasons of the year. While plaintiff's action was in form for injunction, as has been pointed out the case resolved itself into a trial and determination of these respective water rights. Plaintiff, though not receiving all that it sought, was given a recovery against the claims and contentions of the respondents. It was entitled to its costs. (Code Civ. Proc., sec. 1022; Hoyt v. Hart, 149 Cal. 723, [87 Pac. 569]; Stimson Canal & Irr. Co. v. Lemoore Canal & Irr. Co., 31 Cal. App. 396, [160 Pac. 815]; Mally v. Weidensteiner, 88 Wash. 398, [153 Pac. 342]; Cuthbert Burrell Co. v. People's Ditch Co., 31 Cal. App. 396, [160 Pac. 845].) Appellant complains that respondents, under permission to answer an amendment to the complaint, which presented no new matter, improperly availed themselves of this permission to introduce into their answers a new plea of the statute of limitations and that the court, upon motion, refused to strike out this new plea; and, finally, that after having refused to strike it out the court failed to find upon it. In contemplation of the new trial which must be ordered, these matters cease to be of consequence, and the court will permit such amended pleadings or amendments to the pleadings as may be meet in equity. The other matters urged upon our attention by appellant do not require detailed consideration, as it is unlikely that they will arise in or at the second trial of this case. Thus, as it has been held that appellant is entitled to its costs in the trial court, and as it is not within the probabilities that there will be another trespass and destruction of appellant's dam, and as the vital controversy is over the apportionment of the water, and, finally, as the judgment is here reversed, it is unnecessary to consider whether or not appellant was entitled to an injunction against the offending defendant Waller, who alone, it appears, tore out a part of appellant's dam. Touching the uncertainty of the judgment, the trial court will, of course, make its judgment as specific within the warrant of the evidence as may be possible. The judgment and order appealed from are reversed. [S. F. Nos. 7507-7527. In Bank.-February 7, 1917.] ALASKA PACIFIC STEAMSHIP COMPANY (a Corporation), Petitioner, v. A. J. PILLSBURY et al., as Members of the Industrial Accident Commission of the State of California, Respondents. WORKMEN'S COMPENSATION ACT-JURISDICTION OF INDUSTRIAL ACCIDENT COMMISSION-STEVEDORE-VESSEL LYING IN NAVIGABLE WATERS.The Industrial Accident Commission of this state has jurisdiction to make an award of compensation for an accidental injury to a stevedore while working on a vessel lying in navigable waters in this state. APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission of the State of California. The facts are stated in the opinion of the court. Ira A. Campbell, and McCutchen, Olney & Willard, for Petitioner. Christopher M. Bradley, and F. R. Wall, for Respondents. THE COURT.-In the above-entitled proceedings, writs of certiorari were issued to review an award of the Industrial |