Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.

This was an action to recover damages for the diversion of water from, and injury to, the flume and ditch of plaintiffs, and for an injunction.

The complaint in this case occupies a space of fourteen closely-written pages of the record, and abounds in verbosity and repetition. It contains four counts :

The first count alleges that on the fifth day of July, 1853, plaintiffs, and those under whom, they claim, wore the owners, and entitled to the possession, of a certain water-right and privilege styled the “ Memphis and Orleans Race Company,” by location, right, prior possession, and occupancy, which said franchise was made, and is in progress of construction, to carry water from the Middle Fork of the Yuba River and its tributaries above the point of location, and the small stream along the line of the route, and also from Canon Creek, a tributary of the South Fork of Yuba River, and also from the lakes, so called, being tributary to said Middle Yuba River, etc. Plaintiffs having so located and possessed, etc., the defendants, on the seventh day of April, 1855, and on divers other days and times between that day and the day of filing this complaint, entered into and upon the same, and forcibly and unlawfully broke, damaged, and injured the said race, ditch, and canal, upon which the said waters are to run, thereby injuring and damaging the works and franchise, and rendering the same useless to plaintiffs; and by and through divers logs, trees, stones, gravel, etc., caused by the defendants to flow, fall, etc., upon, over, and through, the said race; in consequence of which said acts of defendants the lives of plaintiffs and their employees are greatly endangered, etc. ; and to repair the breakage requires great additional work, costs, etc.,—to the damage of plaintiffs of $20,000.

The second count charges that the defendants, on the day and year last aforesaid, and on divers other days, etc., by blasting rocks, uprooting divers logs, stones, and trees, etc., and causing them to fall against said race of plaintiffs, broke and injured the same, and rendered the same useless, etc.,—to the damage of plaintiffs of $20,000.

Third count: Plaintiffs being possessed and entitled to the premises aforesaid, lands and appurtenances, the said defendants on, etc., with force and arms broke and entered several closes of plaintiffs, and then and there forced and broke open and broke to pieces, damaged, and spoiled said premises, to wit: said race, etc., and thereby as well as by forcibly and injuriously obstructing the water flowing therein, and forcibly and injuriously diverting the water accustomed to flow therein, and greatly damaging said premises, etc., defendants subverted, dug up, and removed, the said earth, timber, wood, and lumber, and thereby absolutely dammed up and diverted the waters of the South Fork of the Middle Yuba River, which was wont to flow in and through the race of plaintiffs—thereby damaging and injuring said plaintiffs, etc., in the sum of $20,000.

Fourth count: Plaintiffs, on or about the fifteenth day of June, 1853, intending to use the waters of the South Fork of the Middle Yuba River, above the falls in each of the forks, the waters tributary thereto, and the waters of Canon Creek, for the purpose of a canal for mining purposes, did proceed to claim and locate the right to the use of said waters, and did commence the erection of a flume and ditch, etc. They also aver that they built a steam saw-mill on the line of the work, and expended over $100,000. On the first day of May, 1856, the flume was nearly completed from a point about six miles below the upper termination of the flume, to the South Fork of the Middle Yuba River, and it became necessary, in the prosecution of the work, to use the waters of said stream. The defendants, well knowing the premises, did on that day, by the erection of dams, divert the waters of said stream, and prevent them from flowing into the flume of plaintiffs, and did also break down and destroy a portion of plaintiffs’ flume, and that defendants still continue such obstruction and diversion of said waters, and threaten to continue the same. The complaint prays for an injunction.

The defendants demurred to this complaint, and assigned two causes of demurrer:

1. That the complaint does not state facts suflicient to constitute a cause of action.

2. Misjoinder of action, or several causes of action, have been improperlyjoined in this : that a cause of action for injuries done to the plaintiffs’ flume, or ditch, to recover damages, is joined to a cause of action for the purpose of enjoining and restraining the diversion of the water by defendants; and, secondly, a cause of action arising from an alleged trespass, is joined to a suit in equity for an injunction, the two actions having in point of fact no connection with each other.

The demurrer was overruled, and -defendants excepted. Defendants then filed their answer, setting up :

1. Another action pending identical with and the same as the present action.

. 2. Denying the jurisdiction of the Court, of the subject-matter, on the ground that the cause of action occurred in the county of Elevada.

The case was tried before a jury, the plaintiffs had a verdict and judgment, and the defendant appealed.

The additional facts necessary to understand the points decided, are set forth in the opinion of the Court.