Churchill

dissenting. — I dissent. Under our practice I think a plaintiff may couple an application for an injunction to restrain future trespass with an action for damages for past trespasses of the same character, and that notwithstanding his prayer for equitable relief he is entitled to a jury trial of the issues involved in his action for damages.

The following is the opinion of Department One above referred to:

Action to enjoin the defendants, perpetually, from diverting water from a stream called “ Pine creek,” by means of a dam across the same and a ditch leading therefrom, alleged to have been wrongfully constructed and maintained by the defendants; and also to abate the dam as a nuisance, and to recover damages alleged to have been suffered by plaintiff in consequence of such diversion of water during the years 1887 and 1888.

The case was here on a former appeal from the judgment, on the judgment-roll. On that appeal the judgment was affirmed, on the ground that the trial court found as a fact that the plaintiff had consented to all the acts complained of. (Churchill v. Baumann, 95 Cal. 541 .)

The present appeal is from an order denying plain-, tiff’s motion for a new trial;…

Upon a reconsideration of the questions involved in this appeal we are satisfied with the conclusion reached by Department One in its opinion filed herein March 10, 1894, and for the reasons stated in that opinion the order appealed from must be affirmed.

Order affirmed.