Evans

I concur in the foregoing opinion (and in the judgment) in all respects, except where it is held that the diversion of water is a nuisance. On that point I express no opinion. That the case is one in equity I have no doubt.

I concur in the judgment: Ross, J.

This is an action to recover damages for the obstruction, diversion, and use of the water of a stream, and for an injunction restraining defendants from continuing such obstruction, diversion, and use. The court below, on the trial, submitted a number of special issues to a jury, which were answered by it. Before the jury retired, counsel for plaintiff demanded of the court that the jury be allowed to bring in a general verdict, in addition to the verdict on the special issues submitted. This the court refused, and plaintiff excepted.

The court did not err in refusing the demand of plaintiff. The case is one in equity. This was so held in Courtwright v. Bear River etc. Min. Co., 30 Cal. 576 , Yolo Co. v. Sacramento, 36 Cal. 193 , and Learned v. Castle, 67 Cal. 41 , 7 Pac. 34 . In Yolo Co. v. Sacramento, the court used this language: “But we do not consider that the abatement of a nuisance, and the recovery of damages therefor, are distinct causes of action in the sense of the rule invoked by the demurrer. The nuisance is the cause of action. The abatement and damages therefor are merely different kinds of relief to which the plaintiff may be entitled.”

In the case under…