Hayes

Plaintiffs, in their complaint, aver that the corporate plaintiffs own a certain canal or ditch, of which the individual plaintiffs are in possession as lessees, and that without permission of plaintiffs, or any of them, defendant wrongfully entered upon the same, and without right took water therefrom, and injured the banks thereof, and threaten to continue to enter upon it and to take water therefrom, and will so enter and divert and use water therefrom, and injure and destroy the embankments and head-gates thereof.

And particularly on a day named he did enter in and upon the canal, and, with intent to injure and break said canal, raised the head-gates nearest defendant’s residence, intending that the waters should injure and destroy the canal.

They further aver that defendant will, unless- restrained, enter upon the canal, and without right, and divert water therefrom, and injure and destroy, tear down, remove the embankments and head-gates thereof. They ask that defendant be enjoined from these acts, and for damages.

The defendant answered, and also filed a cross-complaint. Plaintiffs demurred to the cross-complaint for want of sufficient facts, and on the trial objected to…