trespass and a cause of action for an injunction to restrain a threatened additional trespass may be joined, and an objection that they are not separately stated cannot be reached by a demurrer, upon the ground of misjoinder, but can only be reached by motion, unless the failure to state them separately renders the complaint ambiguous, unintelligible, or uncertain.

4. In an action for destroying a ditch, deeds and receiver's receipts for mineral entries are competent to show ownership in plaintiff, and the use to which he could put the water; and the fact that he was not sole owner of some of the parcels did not affect their admissibility.

5. In an action for destroying plaintiff's ditch, which crossed defendants' mine, the fact that there had been locations covering part of the mine before the ditch was constructed is immaterial, when defendants' title was not connected with them, but was based upon a survey and location made after the construction of the ditch.

6. Where plaintiff owned a right to a quantity of water, it is immaterial in what ditch the water was taken when he acquired the right, if the change of ditches did not injure defendants.

Commissioners' decision. Department 1. Appeal from superior court, Trinity county; T. E. Jones, Judge.

Action by Henry Jacob against Henry Lorenz and Jacob Liebbrandt to enjoin defendants from destroying a certain ditch, and for damages for the injury already done. An injunction was refused, and the damages were assessed at $650. Defendants appeal. Affirmed.

James W. Bartlett, for appellants. John W. Turner, for respondent.

HAYNES, C. This action was originally brought by the plaintiff to enjoin the defendants, who are owners of the Mammoth placer mine, and who are working the same by hydraulic process, from injuring or washing away a certain water ditch, known as the "East Branch of the Jacob Ditch," owned by plaintiff, and which crosses defendants' mine. Several ditches, among them the Jacob ditch and the Butcher ditch, take water from Connor's creek. Plaintiff acquired the ownership of the Butcher ditch in 1863, and commenced the construction of the Jacob ditch in 1868, and completed the east branch and turned water into it in October, 1870. This east branch of the Jacob ditch connects with and conveys water into the lower part of the Butcher ditch and to a reservoir used by plaintiff in working a mine. The amended complaint alleged the ownership and right to the 20 inches of the "first flow" of the waters of Connor's creek through the Jacob's ditch and branches; that a portion of this water had been used through this ditch since 1868, and later all of it; and that the ditches abovenamed, "united, formed one complete system." It was further alleged that, at the time said east branch was constructed, the ground over which it passed was vacant and unappropriated mineral land of the United States, but which was afterwards, on December 31, 1877, patented to defendants; that

the patent reserved the water rights and ditches mentioned in section 2339' of the United States Revised Statutes; that plaintiff had a prior vested right of way for the same; that defendants denied his title to said ditch and water, and had washed away the earth to within 80 feet of his ditch, and threatened and intended to wash away and destroy the same; and prayed for a perpetu al injunction. Defendants' demurrer to this complaint was overruled, and this ruling is assigned as error. But one cause of action is stated in the complaint. The Butcher ditch was doubtless mentioned because of its relation to the east branch of the Jacob ditch. Some, if not all, of these allegations, were not material, but surplusage does not vitiate. As to a further ground of demurrer, appellants contend that sufficient facts are not stated, because the complaint does not allege "that plaintiff owned a vested and accrued water right appurtenant to the Jacob ditch, or that he did in 1868 or in 1870." It is not necessary to use the language of the act of congress. Facts are alleged which show that he had such vested right. Whether this right must be appurtenant to a particular ditch will be noticed hereafter. As to the date at which the right must have accrued, defendants contend that the right must have vested and accrued prior to the passage of the act of congress of July 26, 1866, and that only water and ditch rights which had accrued and vested prior to that act are protected by sections 2339 and 2340 of the Revised Statutes. Such contention cannot be sustained. Section 9 of the act of July 26, 1866, (14 Stat. 253,) after acknowledging and confirming water and ditch rights then existing, contains the following proviso: "Provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." Any doubt which may have existed as to the meaning of the act of 1866 was removed by the amendatory act of July 9, 1870, (16 Stat. p. 218, § 17,) which provided that "all patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this is amendatory." That Jennison v. Kirk, 98

'Section 2339 provides: "Whenever, by priority of possession, rights to the use of water, for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed."

U. S. 453, cited by appellants, does not sustain their contention, is apparent from the fact that the ditch there in controversy was constructed in 1873, and its validity was not questioned, except as to a conflict with an older ditch. The language used in the opinion in Broder v. Water Co., 101 U. S. 274, also cited by appellants, would appear to support their contention, but the question here raised was not before the court. The ditch there in question was completed in 1853, and the opinion must be read in the light of that fact. The case of Vansickle v. Haines, 7 Nev. 249, also arose before the act of 1866, and was not applicable to the question here. Lewis, C. J., who wrote the opinion in Vansickle v. Haines, also wrote the opinion in Hobart v. Ford, 6 Nev. 77. In construing section 9 of the act of 1866, the court said: "In its adoption there appears to have been three distinct objects in view: First, the conormation of all existing water rights; second, to grant the right of way over the public land to all who may desire to construct fumes or canals for mining or manufacturing purposes; and, third, to authorize the recovery of damages by settlers on such land," etc. See, also, Barnes v. Sabron, 10 Nev. 217. The demurrer to the amended complaint was properly overruled.

Defendants then answered, denying spe cifically the allegations of the complaint, and, for a further and separate answer, alleged "that since the commencement of this action the defendants, in the ordinary course and manner of working the Mammoth placer mine by the hydraulic process, have mined and washed away about seventy feet of the ditch described in the complaint as the 'East Branch of the Jacob Ditch;' that it is destroyed, and cannot be specifically replaced." Plaintiff thereupon, by leave of court, filed a supplemental complaint, alleging the facts stated in defendants' additional answer above quoted, and further alleging that it was done wrongfully and maliciously, and with intent to destroy said ditch, and that he was thereby damaged in the sum of $5,000. Defendants moved to strike out the supplemental complaint, and also demurred thereto. An amended supplemental complaint was afterwards regularly filed, alleging more fully the damage sustained, and that at that time defendants had washed away 627 feet of his ditch, and prayed, as before, for a judgment for damages, and an injunction to restrain further injury to his ditch, and for general relief. The motion being denied, and the demurrer overruled, these rulings are assigned as error, and present the most important questions in the case.

1. The motion to strike out was properly denied. Permission to file a supplemental complaint is in the discretion of the court. Code Civil Proc. § 464; Harding v. Minear, 54 Cal. 504; Greenwood v. Adams, 80 Cal. 77, 21 Pac. Rep. 1134. This discretion, how

ever, is not an arbitrary one. In Gleason v. Gleason, 54 Cal. 135, it was said: "As a general rule, the right to file a supplemental complaint can be exercised only with reference to matters which may be consistent with and in aid of the case made by the original complaint, and it is not allowable to substitute a new and independent cause of action by way of a supplemental complaint." But the court violated none of these limitations upon its discretion. Plaintiff came into a court of equity seeking only preventive re lief. His property had not been invaded, and he could then have only preventive relief. He alleged that defendants threatened and intended to destroy his ditch, and deprive him of the substance of his property. They did not deny that they threatened and intended to destroy plaintiff's ditch, but defiantly answered that since the commencement of the suit they had executed their threats; had destroyed the ditch; that it could not be specifically replaced; and upon that ground, as a separate defense, asked a court of equity that plaintiff take nothing by his action, and that they recover costs. Assuming plaintiff's ownership of the ditch, preventive relief was not all that he was then entitled to. He had suffered damage. The facts alleged in his complaint showing his ownership and title were appropriate to an action for damages, and he was still entitled to an injunction to restrain further injury. The jurisdiction of a court of equity had been properly invoked and acquired. The defendants, by their own act, made different or additional relief necessary. The subject of the action was plaintiff's property, and his right to convey water in his ditch across defendants' mine. That right was not destroyed, and was still the subject of litigation. Damages for the injury to that property-the ditch-was incident to that right, and consistent with it. It was not an "independent cause of action." It does not appear but that a new ditch might then have been dug around the part washed away, or that a flume or pipe might not have been used to cross the break. It is no objection to a supplemental complaint that different or additional relief is asked for. Baker v. Bartol, 6 Cal. 483. Indeed, the object of the supplemental complaint is to obtain additional or different relief without resort to a new action. Not only did the court not err in refusing to strike out the supplemental complaint, but appellants should not be heard to complain that their efforts to defeat plaintiff's action, by making the relief he sought inadequate, had not proved successful.

2. The demurrer was upon several grounds. The first and second grounds need not be noticed. The third ground is that there is a misjoinder of causes of action. and that they are not separately stated. Treating it as two causes of action, it is too well settled to require discussion that a

cause of action for damages for a trespass and a cause of action for injunction to restrain further or additional trespass threatened to be committed upon the same property may be joined. The objection that they are not separately stated cannot be reached by a demurrer upon that ground. It can only be reached by motion, unless the failure to state them separately renders the complaint ambiguous, unintelligible, or uncertain. That ground was also assigned, but I think the objection was not well taken.

Several other objections are urged under this head, the chief of which is that the complaint noes not apportion the damages, or state how much each particular mine or other property owned by plaintiff was damaged by the destruction of the ditch. It is true that damages which, though the natural, are not the necessary, consequence of defendants' acts, are special, and should be specially alleged. But the references in the complaint, amended and supplemental, to the mines and reservoir of the plaintiff, and the use to which he applied the water conveyed through the ditch, were pertinent, for the purpose of showing the permanent and continued use and value of the ditch. If there were no useful purposes to 'which plaintiff could apply the water, or if the use were but a temporary one, it is manifest that the value of the ditch would be greatly diminished. Plaintiff's failure to allege special damage by the depreciation of the value of his mines could not make his complaint obnoxious to this form of demurrer. It simply eliminated the question of special damages from the case, but left the allegations pertinent for the purpose of showing a useful and continued purpose to which the water could be applied; for, without such showing, he could not recover more than nominal damages. The demurrer was properly overruled.

Defendants' answer put in issue all the material allegations of the complaint, and the cause was tried by the court, without a jury, and resulted in findings and judgment for the plaintiff for $650 damages; but the injunction was denied. In their motion for new trial, defendants specify numerous errors of law, and many particulars in which they claim the findings are not justified by the evidence. The several deeds and ceiver's receipts for mineral entries, offered by plaintiff, were properly received to show ownership in the plaintiff, and a use to which the water was and could be applied. That, as to some of these parcels, he was not the sole owner, did not affect their admissibility.

re

The objection to the deed of Barthol Jacob and wife, on the ground that it was defectively executed by the wife, is without merit.

It is not perceived why surface water from rains and melting snow, which natu

(1) That a part of the Mammoth mine was located before the ditch was constructed. That there had been some prior locations covering a portion of the Mammoth mine, made or attempted appears in the evidence. Defendants' title to the mine was not, however, connected with any prior location, but was based upon a survey and location made after the ditch was constructed. While the patent relates back to the location, it only relates to the location which is the inception of the title perfected by the patent, and not to any prior location which does not appear in the chain of title resulting in the patent. It is therefore immaterial whether there had been prior locations; and, besides, the use of the ditch had been permitted without objection up to about the time this action was commenced, a period of nearly 18 years.

(2) It is urged that plaintiff's right to the 20 inches of water was not appurtenant to the Jacob ditch. It is not disputed that plaintiff owned the right to that quantity of water to be diverted from Connor's creek. It is immaterial in what ditch this water was taken when he acquired the right. The place of diversion, or of use, or of the purpose to which the use was applied, could be changed. Civil Code, § 1412; Ramelli V. Irish, 96 Cal., at page 217, 31 Pac. Rep. 41. The restriction imposed by section 1412, Civil Code, is a matter of defense, and defendants could not be injured by its being taken in a ditch above theirs, it being the first right on the stream, as in any event it could not be taken in their ditch, and therefore did not diminish the water to which they were entitled. The testimony of the witness Schoppi, that plaintiff, by taking these 20 inches in the Jacob ditch, left that much less to come to defendants' ditch below, does not tend to show injury; for, if plaintiff's ditch were below, they would be required to let that amount pass and reach plaintiff's ditch. Appellants' contention that the water right must be appurtenant to a certain ditch is not sound. The water right is the principal thing, and, if either is appurtenant to the other, the ditch is appurtenant to the water right, and, as the water may be used through any ditch, the question becomes unimportant.

3. The date at which plaintiff acquired title to the several parcels of mining property is wholly immaterial, nor was it material that plaintiff's title to the 20 inches of water was not conveyed to him until 1887 Title to this water originated prior to June

8, 1852, and it could not affect defendants' liability whether they were the owners, though without legal title, or were the lessees of the water right, or conveyed it in their ditch for the owner prior to 1887.

4. The evidence as to the amount of damages sustained by plaintiff was conflicting, both as to the amount and the grounds upon which it should be estimated; but the finding placing plaintiff's damages at $650 is fully justified by the evidence, upon grounds to which no exception could properly be taken. There was evidence tending to show that the market value of the ditch was $2,000, and that its rental value was $125 per annum. While defendants' testimony tended to show very little injury, as there was an unauthorized invasion of plaintiff's property he was entitled to some damages; and, as the court could have found upon unobjectionable testimony the amount awarded, we are not justified in holding that this finding is not justified by the evidence.

Other questions are made upon the introduction of evidence and as to other findings, which need not be specially noticed. We have examined each of them, and find no material error prejudicial to defendants. The right of the plaintiff is clear, and we see no ground upon which a judgment for defendants could be properly based, and advise that the judgment and order appealed from be affirmed.

We concur: BELCHER, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(98 Cal. 304)

DULIN v. PACIFIC WOOD & COAL CO. et al. (No. 19,251.)

Action by E. G. Dulin against the Pacific Wood & Coal Company and B. D. Clugston to determine whether plaintiff or defendant Clugston was elected a director of the defendant the Pacific Wood & Coal Company. Judgment was rendered for plaintiff, and defendant Clugston moves for an order restraining plaintiff from acting as director pending appeal. Motion denied.

D. L. Withington and Works & Works, for appellants. Mr. Palmer, for respondent.

HARRISON, J. At a meeting of the stockholders of the Pacific Wood & Coal Company, a corporation, held at San Diego, November 17, 1892, for the election of five directors for the year then next ensuing, the appellant Clugston was declared elected as one of the directors. The respondent herein claimed that certain votes offered to be cast for himself at the election should have been received, and that, if they had been received, the result of the election would have been shown that he was elected instead of Clugston. On the 10th of December, 1892, Dulin filed his petition in the superior court of the county of San Diego, under the provisions of section 315 of the Civil Code, making the corporation and Clugston defendants, and praying the court to set aside the election of Clugston as a director, and to confirm the election of himself as such director, and for such other relief in the premises as might seem proper. The matter was heard by the court, and on the 25th of January, 1893, it rendered its judgment that, at the said election, Dulin was elected one of the directors of the corporation, and that his election be confirmed, and that Clugston was not elected, and had not, since the 17th day of November, 1892, been a director in said corporation. On the same day the defendants appealed from the judg

APPEAL-SUPERSEDEAS.

1. Where, in an action to determine whether plaintiff or defendant was elected a director of a corporation, the judgment declares plaintiff elected and defendant not elected, and grants no other relief, and an appeal is taken, plaintiff will not be restrained, pending appeal, from performing his duties as such director, since his assuming to act as a director, while it may be in consequence of the judgment, is not a proceeding on it.

2. Where a case is one within Code Civil Proc. § 949, providing for a stay of proceedings on appeal, a writ of supersedeas will not be issued until an appeal has been perfected as provided in said section, and then only in a case where the lower court seeks to enforce its judgment notwithstanding such appeal.

3. A writ of supersedeas will not be issued to restrain a party to an action in the assertion of his rights as established by a judgment therein, other than to prevent him from using the process of the court below to enforce such judgment.

In bank. Appeal from superior court, San Diego county; George Puterbaugh, Judge.

proceedings in this action, and restraining the respondent Dulin from doing any act as director, president, or manager of the appellant the Pacific Wood & Coal Company, or interfering with the management of the business of said company by the appellant Clugston as director and president, and the other directors thereof." Each of the contestants herein states in his affidavit filed upon this motion that after the election in November he was duly elected president of the corporation, the respondent Dulin stating that he "was by said board of directors duly elected president of said corporation," and the appellant Clugston that he "was duly elected president of said corporation by the votes of himself, James Wells, and L. Clugston, being a majority of said board,"-from which it would appear that, after the election, two o the directors recognized the appellant as having been elected one of their number, while two others recognized the respondent,

and that each of the contestants thereafter assumed to act as such president. It also appears from the affidavits that, after judgment had been entered herein, the corporation brought an action against the appellant Clugston for the purpose of preventing him from trespassing upon its property or interfering with its business, and that, by virtue of the process issued therein, Clugston was ejected from certain premises belonging to the corporation, and Dulin took possession thereof, and assumed to act as a director and its president, and that Clugston was excluded from the management thereof. The appellants contend that by virtue of their appeal the respondent is prohibited from doing these acts, and they now ask for this order in support of their contention.

The writ of supersedeas is "an auxiliary process designed to supersede the enforcement of the judgment of the court below, brought up by writ of error for review." Williams v. Bruffy, 102 U. S. 249. Originally it was a writ directed to an officer, commanding him to desist from enforcing the execution of another writ which he was about to execute, or which might come into his hands. In modern times the term is often used synonymously with a "stay of proceedings," and is employed to designate the effect of an act or proceeding which of itself suspends the enforcement of a judgment. In this state the writ is frequently granted by this court for the purpose of staying proceedings in the superior court, when a review of the action of that court is sought in this court, either upon direct proceeding or on appeal, and is directed to the court whose action is under review, or to an officer of that court who may be about to enforce its judgment. Section 949, Code Civil Proc., declares that in cases like the present the perfecting of an appeal "stays proceedings in the court below upon the judgment or order appealed from," thus creating a statutory supersedeas, or "a suspension of the power of the court below to issue an execution on the judgment or decree appealed from, or, if a writ of execution is issued, a prohibition against the execution of the writ." Hovey v. McDonald, 109 U. S. 159, 3 Sup. Ct. Rep. 136. If, after such appeal, the court below seeks to enforce its judgment, this court will grant a special order or writ restraining its action. The writ itself is directed to the court whose action is sought to be restrained, or to some one of its officers, and is limited to restraining any action upon the judgment appealed from. It cannot be used to perform the functions of an injunction against the parties to the action, restraining them from any act in the assertion of their rights, other than to prevent them from using the process of the court below to enforce the judgment, nor can the writ be employed for any purpose upon persons not parties to the judgment. Its effect is merely to leave the parties to

the judgment in the same position as they were prior to its entry, and to prevent the appellant from being prejudiced by its enforcement. There are many judgments, however, which are self-executing, or which have an intrinsic effect, upon which there are no proceedings to be stayed, and which will not be affected by an appeal therefrom. A judg ment granting or dissolving an injunction, or determining the status of an individual, granting or denying a divorce or an annulment of marriage, quieting title to a tract of land, setting aside the execution of a deed, are instances of such judgments. In Walls v. Palmer, 64 Ind. 496, a judgment had been rendered suspending the petitioner from practicing as an attorney, and it was urged that an appeal therefrom had the effect of restoring him to his right to practice during the pendency of the appeal. The court, however, held that to give that effect to the appeal would be to reverse the judgment of the suspension before the appeal was judicially decided; saying: "The effect of the appeal and supersedeas is to stay the judgment of suspension as it is, and prevent further proceedings against the petitioner. It does not reverse, suspend, or supersede the force of the judgment. That remains in all respects the same. The judgment itself requires no further execution than its own terms. It executes itself except as to the collection of costs, which is stayed by the appeal and supersedeas. The only effect of an appeal to a court of error, when perfected and while pending, is to stay execution upon the judgment from which it is taken." And herein should be observed the distinction between the effect of an appeal from a judgment in staying further proceedings thereon, and its effect in depriving the judgment itself of any efficacy as evidence of the fact determined. The appeal suspends its force as a conclusive determination of the rights of the parties, but the stay of proceedings consequent upon the appeal is limited to the enforcement of the judgment itself, and does not destroy or impair its character.

The purpose of the present application is not to prevent the court from taking any action to enforce its judgment, but to prevent Dulin from acting as one of the directors of the corporation. His assuming to be such director, while it may be in consequence of the judgment, is not a proceeding upon the judgment. The acts done and threatened by him were not done by virtue of the judgment, but in consequence of the recognition by his fellow directors of his right to co-operate with them. The fact that the judgment was rendered in his favor may have been a motive governing the other directors in recognizing him as a fellow director, and in admitting him to their coun sels and excluding Clugston therefrom, but such action is independent of the proceeding in court. The stay of proceedings upon the enforcement of the judgment resulting