This was a proceeding in the Superior Court of Butte County to condemn a strip of defendant’s land, thirty feet in width, for a ditch or canal, designed to conduct water for mining, irrigation, manufacturing, and household and domestic purposes. There was a demurrer to the complaint, which was overruled. The defendant thereupon filed an answer, in which he denied all the material allegations of the complaint; and special issues, involving some of the questions in controversy, were submitted to a jury.

The following were the questions submitted to and passed upon by the jury :

“ Q. Is the proposed ditch intended for the purpose of supplying water for either of the following uses, namely: Mining, agriculture, manufacturing, and domestic? If so, name the use or uses.

“A. Yes, the following, namely: Mining, agricultural, manufacturing, and domestic.

“ Q,. Is it one of the purposes of said ditch to supply water for sale, rental, or distribution?

“A. Yes.

“ Q. Is the land sought to be condemned, or any part of it, necessary for the said ditch? and if less than a-strip thirty feet wide be sufficient-, state how much is necessary.

“A. Yes: it is necessary for said ditch, and thirty feet of land is necessary.

“ Q. What was the value of the land to be taken at the time of the issuance of the summons in the action, viz., on the 10th day of April, 1880 ?

“A. $23,431.

“ Q. What damage (if any) will the balance of the tract sustain by reason of its severance from the part sought to be condemned and the construction of the ditch?

*595 “A. Damages, $175.

“ Q. What is the value of the benefits that will accrue to the portion of the land not sought to be condemned, from the proposed ditch, if any ?

“ A. None.

“ Q. Is the plaintiff the owner of the water right and privilege named in the complaint ?

“ A. Yes. o

“ Q. Is he now engaged in the construction of the ditch described in the complaint, and was he so engaged at the commencement of this action ?

“A. Yes.

“ Q. Is the plaintiff in charge of the proposed ditch ?

“A. Yes.”

From the above findings of the jury, the Court drew the following conclusions of law:

It was therefore “ by the Court adjudged and decreed, that the use described in the complaint is a public use, and that the land demanded by the plaintiff in the complaint aforesaid is necessary thereof.

“ And it is further ordered and adjudged, that the said plaintiff, within thirty days from the date hereof, pay the defendant the sum of $198.43!, and that upon the said payment being made within said time, the final order condemning and taking said strip of land be made and entered.”

The plaintiff deposited the sum of $198.43 with the clerk of *596 the Court, and thereupon a judgment of condemnation was duly entered. A motion for a new trial was made, which was denied by the Court, and this appeal is taken from the judgment, and also from the order denying the motion for a new trial. The bill of exceptions does not contain the .evidence taken in the Court below, and the questions presented on this appeal are purely questions of law.

The proceeding is under title vii of the Code of Civil Procedure, concerning eminent domain. Section 1238 of that Code provides as follows: “ Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: * * *

The complaint shows, that “ the uses for which said water is intended and designed are mining, irrigation, manufacturing, and household and domestic purposes; that the line of said canal has been surveyed and located upon the ground, and marked out, etc. * * * That along said line of. canal, there are many valuable mining claims, and a large body of undeveloped mining land, besides much agricultural land. That said mining claims cannot be worked, nor can said mineral land be developed, nor can said agricultural land be profitably cultivated, without water brought upon the same by artificial means. That said canal is intended to and will supply this want by the sale and distribution of the said water along its line, and at its terminus at Thompson’s Flat, and such is the design and intention of the plaintiff; and he avers, that it is a public use, and that he is in charge thereof. * * * That the taking of a portion of said land of the defendant for said use is necessary,” etc.

These averments in the complaint bring the case within the *597 provisions of the statute, as well as the article of the Constitution above referred to.

2. One of the defenses set up in the answer of the defendant is, “ that plaintiff and others acting with him own large and valuable tracts of mining ground near the terminus of the proposed canal at Thompson’s Flat, and that it is his and their intention to use the waters of said canal in mining his and their own land, and for no other purpose, and that said use is a private use.”

On this issue, there was no finding either by the jury or the Court. There was no general verdict, and the answers of the jury to the questions submitted to it do not determine the issue. The defendant was entitled to a finding upon it, for it is clear that if, as is asserted by him, the alleged public use is a mere pretense, and that the real purpose of the plaintiff is to procure the waters for the private use of himself and his associates, he cannot invoke the aid of the Court in this proceeding. This issue of fact should have been submitted to the jury, a jury trial not having been waived, nor a reference ordered. ( Wilmington C. & R. Co. v. Dominguez, 50 Cal. 505 .)

Judgment and order reversed, and cause remanded for a new-trial.

McKinstry, J., and Ross, J., concurred.