Kallenberg

This is an action to recover damages for wrongfully damming back the waters of a certain watercourse extending across plaintiffs’ lands and those of the defendants, and to enjoin further interference with the flow of said waters.

The question of damages was submitted to a jury and a verdict was rendered in favor of plaintiffs for $1,800 actual and $200 exemplary damages. The equitable issues were passed upon by the court and the injunctive relief prayed for was granted. Judgment was entered accordingly and the defendants appealed.

The original complaint, filed here on March 3, 1917, contained two counts based upon different theories of plaintiffs’ right to maintain the action. A general demurrer was interposed and was by the trial court sustained. Plaintiffs declined to amend and a judgment of dismissal followed. Plaintiffs appealed and the judgment was reversed, with directions to the trial court to overrule said demurrer and take further proceedings proper to determine the rights of the parties. (Kallenberg v. Long, 39 Cal. App. 731 [ 179 Pac. 730 ].) Plaintiffs afterward filed an amended complaint in which they abandoned the first count and restated the second cause of action…