Lorenz

The assignments of error which have been argued upon this appeal are: (1) That the complaint does not contain facts sufficient to constitute a cause of action. (2) That the court erred in admitting in evidence, against defendants’ objections, the record of a former judgment.

1. The complaint is not artistically drawn; yet, in its verbiage, the following facts, although defectively and illogically stated, sufficiently appear, viz.: That, in 1882, the plaintiffs were the exclusive owners, by prior appropriation, of the right *297 to divert and use all the water of a stream called “Connor creek,” except a sluice-head of twenty inches, or “so much as will flow without pressure through an aperture ten inches in length and two inches in height,” and the surplus of the natural flow of the stream not appropriated by the plaintiffs; that “in the vicinity of Eed Hill, Trinity county, state of California,” the plaintiffs had constructed four ditches, which connected with and tapped the creek, by means of which they brought the water from the creek “to the mining ground in that locality,” for use in mining and other useful purposes; and that, while engaged in the exercise of their right, the…