PoTTBR, JuSTICR.
The defendant in error, Frank A. Mau, recovered a judgment in the District Court in this action for the sum of two thousand dollars as damages for injuries alleged to have been sustained by him through the wrongful diversion of water from an imgating ditch by the plaintiff in error; and the latter was perpetually enjoined from thereafter taking or diverting such water.
By his petition in the action, defendant in error alleges that he is. the owner and in possession of certain lands consisting of three hundred and twenty acres, and in the year 1900 had growing on said land large and valuable crops of lucerne, native and tame grasses, oats, rutabagas, potatoes, garden stuff, small fruits and other products; that in 1893 he applied to the State Engineer for and obtained a permit to construct an irrigating ditch and to appropriate water from Smith’s Fork for the complete irrigation, reclamation and cultivation of all of said land; and that in pursuance thereof he constructed a certain irrigating ditch and appropriated the water of said Smith’s Fork, conduct[385]*385ing the same through said ditch to and upon his land, and applied the same to the irrigation, reclamation and cultivation thereof; and that such appropriation and application of the water aforesaid had been continued by him during each succeeding season, whereby he had grown large and valuable crops of the aforesaid grasses, grains and vegetables. He also alleges the use and appropriation of the water for domestic and stock purposes; and that the same constitutes his sole water supply for all the purposes mentioned.
It is further alleged that on or about June 18, 1900, and ever since (the suit was commenced June 28, 1900), the defendant, John W. Stoner, without any right whatever, diverted all the water from said irrigating ditch and appropriated the same to his own use, and thereby deprived the plaintiff, defendant in error here, of the use thereof. On account of said alleged wrongful diversion it is averred that the various crops aforesaid were destroyed, the stock; of plaintiff had been deprived of water, and he was also deprived of the use and benefit of the water for domestic and other beneficial purposes; and his land had been permanently injured. The damages suffered by the lucerne, oats and other products, respectively, the injury to his .stock and. land, and the damage occasioned by reason of the absence of water for domestic purposes are specifically set forth; and the total damages sustained are alleged to amount to $7,150.
It is also alleged that the defendant threatened to continue the diversion, which, if carried out, will render the land wholly unfit for tillage or cultivation and cause plaintiff irreparable injury. The prayer is for damages and for an injunction restraining any further diversion of the water.
The answer consists of a general denial, except that plaintiff’s ownership and possession of the lands described in the petition are admitted.
In the motion for new trial, as well as in the petition in error, objection is taken to the denial by the court previous to the trial of a motion filed and submitted by the defendant [386]*386below that the equitable issue be first tried. Very little is said in relation to this matter in the brief for plaintiff in error — indeed, it is referred to only incidentally, and it is questionable at least whether as a specific ground of error it is not waived. The cause was tried to a jury, and a gen-. eral verdict for the plaintiff below was returned, fixing his damages at two thousand dollars. The judgment, after reciting the verdict, states, “and the court being fully advised in the premises finds for the plaintiff generally and adopts the verdict of the jury. Now, therefore, it is found, ordered and ‘adjudged by the court that the plaintiff do have and recover of and from the defendant the sum of two thousand dollars, together with his costs in this behalf incurred taxed at- dollars, and it is further ordered and decreed that the defendant, his agents, employees and all persons claiming under him are hereby perpetually enjoined and restrained from taking or diverting any of the water of the plaintiff flowing in the canal as described in plaintiff’s petition, to-wit: The Mau canal and the first five feet of water flowing therein.”
It is too well settled to admit of controversy that, under the code procedure, a party may ask and obtain several kinds of relief in the same action. (Phillips on Code Pl., 199, 210; Bliss on Code Pl., 171; Pomeroy’s Code Rem., 76-86; Getty v. Hudson R. R. Co., 6 How. Pr., 269; Akin v. Davis, 11 Kan., 580.) The authorities seem to be somewhat confusing and are possibly contradictory as to .whether in such cases there are two causes of action, or in reality but one cause of action upon which more than one kind of relief is sought. Phillips lays down the rule that the different kinds of relief do not constitute separate rights of action; that there is but one primary right, and one delict, and these afford but one right of action, requiring but one cause of action for its statement, however many ■kinds of relief may be had. (Phillips Code Pl., 210.) And Pomeroy states that there is in fact no joinder of different causes; but only the union of remedial, rights flowing from [387]*387one cause of action. (Pomeroy’s Code Rem., 78.) We think that the case at bar presents but one cause of action, although damages were asked for the injury suffered and an-injunction to restrain the continuance of the acts causing the injury. We cannot agree with the expressed theory of the motion that the main issue in the action was the right to equitable relief. The right to damages upon the facts alleged did not depend upon the determination of the right to an injunction. Both legal and equitable relief was prayed for. On the question of damages for the injuries sustained through the alleged wrongful acts of defendant, either party was entitled to a trial by jury. And the court, in the course of deciding upon the question of equitable relief, might submit the facts to a jury in an advisory capacity. (Otterson v. Chosen Friends H. L. & S. League, 7 Wyo., 89; Akin v. Davis, 11 Kan., 580.) That seems to have been the effect of the procedure taken in the case, for it is stated in the judgment that the court adopts the verdict of the jury and finds generally for the plaintiff, which finding must have had reference to the matter of the equitable relief demanded; since the jury found for the plaintiff on the question of damages.
There are cases doubtless where it would be quite proper, if not necessary, for the court to determine the equitable issues before the submission of the legal issues to a jury; such, for example, where a party seeks the reformation of an instrument and damages for its breach; the right to damages depending upon the reformation of the instrument. But it is not perceived in the case at bar that the right of the plaintiff to an injunction restraining a further diversion of the water constituted a condition precedent to his recovery of damages for the injuries already sustained. We think the court did not err in submitting the cause to a jury and in denying the motion referred to.
It is contended that the jury refused to follow the instructions of the court given at the request of the defendant be■low; that the verdict is contrary to the evidence; that cer[388]*388tain instructions given at request of the plaintiff below are erroneous, and that the judgment is erroneous in that the court adopted the verdict of the jury. The proposition that the verdict is contrary to the evidence appears to be based upon the supposed failure of the jury to follow the instructions of the court; it being contended that upon the evidence under the particular instructions referred to the verdict should have been for the defendant.
It appears that each of the parties to this action had a ditch taking water from Smith’s Fork, and that both ditches for some distance ran substantially parallel to each other. Prior to 1897 the plaintiff below had paid the defendant, Stoner, one hundred dollars for the privilege, as Mau testifies, of constructing his ditch through certain land, or, as Stoner testifies, for the privilege he sold Mau of connecting his ditch with the ditch owned by the former, and taking the water for his ditch -therefrom. It is immaterial which statement is correct. The particular water right secured by Stoner was not shown, nor does it seem to be material to the issues in this case. He testified that he had a recorded water right for his ditch. The plaintiff, Mau, introduced in evidence his applications for permits to construct his ditch and to appropriate water for three hundred and twenty acres of land, and their approval; and he testified that he commenced the construction of the ditch in 1893 and completed it in 1895.
John W. Stoner, the defendant below and plaintiff in error here, Aaron W. Stoner and Victor Forgeon were respectively owners of certain tracts of land lying above the land of the plaintiff, Mau, along the line of his ditch and between his land and the place where the ditch connected with the stream and received its supply of water. We understand from the testimony that John W. Stoner and Aaron Stoner, prior to 1897, had obtained water to irrigate their lands through the Stoner ditch.
In 1897 the parties hereto entered into a written contract, duly signed and acknowledged, and which was also recorded. That agreement is as follows:
[389]*389“This agreement made and entered into between Frank A. Mau of the County of Uinta and State of Wyoming, party of the first part, and John W. Stoner of the s.ame place, party of the second part, witnesseth:
“That, whereas the party of the first part is the owner of three hundred and twenty acres of land situate about two miles south of Cokeville, in said county, and Gustave Mau is the owner of one hundred and sixty acres of land adjoining the same;
“And, whereas, the party of the first part has constructed a water ditch from Spring Creek to said land and is now the owner of the same;
“And, whereas, the party of the second part is desirous to enlarge said ditch and extend the same;
“And, whereas, the following named parties own the following named number of acres of land upon the line of said ditch and the extension thereof, to-wit: John W. Stoner, 860 acres; Charles Deloney, 640 acres; Cyrus E. Wheeland, 360 acres, and Victor Forgeon, 40 acres; Aaron W. Stoner, 160 acres.
“Now, this indenture witnesseth: That, in consideration of one hundred dollars, the party of the first part agrees that the party of the second.part shall have the right to enlarge said ditch to a sufficient capacity to carry water sufficient to irrigate all of the above land and have the right to extend the same from its present terminus.
“And it is further agreed between the parties hereto that the -party of the second part shall have the right at any time before the 12th day of June, 1897, to shut off the water from said ditch for the space of ten days.
“That, after the said 12th day of June, 1897, the party of the second part shall furnish in ditch at least three cubic feet pf water to the party of the first part.
“The said party of the second part agrees to enlarge and extend said ditch, at his own expense (except that the first party agrees to furnish his services, with team, for fourteen days).
[390]*390“The party of the second part agrees to maintain and keep said ditch in repair for the term of one year after the completion of the enlargement thereof, and after the expiration of one year from the completion of the enlargement of said ditch each of the parties hereto agrees to bear his proportion of all necessary expenses in maintaining said ditch and keeping the same in repair in proportion to the amount of water used by them or their assigns.
“The party of the first part shall have the right at all times after the completion of the enlargement of said ditch to draw from said ditch through two opening or sluice gates, to be constructed by the party of the first part, five cubic feet of water.
“And it is agreed that, after the completion of the enlargement of said ditch, all of the ditch now owned by the party of the first part lying north of the juncture of said ditch with Stoner ditch and south of Spring Creek shall become the property of the party of the second part.
“And it is agreed that said ditch, when so enlarged, shall be the property of the parties hereto in proportion to the amount of water used by them or their assigns to its present terminus.
“It is further agreed that all water flowing in said ditch in excess of said five cubic feet shall be the property of the party of the second part.”
The contract refers to a ditch of Mau from Spring Creek. We understand this to be the same ditch he claims to have constructed from Smith’s Fork, and while the testimony is not as clear in explanation of the matter as it might have been, we are led to believe that the Spring- Creek named was used by Stoner as part of his ditch, and that the waters of Smith’s Fork were taken through a ditch into said Spring Creek, and then flowed immediately into the ditch built by Mau, or perhaps first into a part of the Stoner ditch branching off from Spring Creek and then into the Mau- ditch.
It appears that Smith’s Fork is a tributary of Bear River and flows in a westerly or southwesterly direction. Spring [391]*391Creek is also'a tributary of Bear-River and flows in the same general direction, being located south of Smith’s Fork about two miles, at the place where the ditch in question comes into said creek.
The evidence discloses that, after the execution of the contract above set out, Stoner proceeded to enlarge the ditch, although it is contended that he did not in fact enlarge its capacity. At any rate he did some work upon it, a'nd made it larger, at least in .places, and in the progress of the work the two ditches — Stoner’s and Mau’s — were for a portion of the distance consolidated; a part of the ditch built by Mau being abandoned and the Stoner ditch used in place thereof. Whether the provision in the contract that, after the enlargement shall have been completed, all of the Mau ditch “lying north of the juncture of said ditch with Stoner ditch and south of Spring Creek shall become the property of the party of the second part,” refers to the abandoned portion of the Mau ditch, or a portion of. the enlarged ditch formerly used by Stoner, is not explained in the testimony with sufficient accuracy to afford us any very definite information. But we deem the matter of. very little importance, if any, in this case.
There is considerable testimony on the question of the enlargement of the ditch by Stoner. It was endeavored to be shown on the part of Mau that Stoner had not increased the capacity of the ditch; and there is some testimony to that effect. Stoner himself testified that Mau did not complain o.f the work done by him, except in respect to one point on the ditch. After the work was done by Stoner in 1897, it appears that the one ditch, or consolidated ditch, as it is called in some of the testimony, was used by both the parties and by Aaron Stoner and Victor Forgeon each season, and apparently with very little, if any, conflict until June, 1900.
According to.the testimony of Mau, he was engaged in 1900 in growing on his land the various crops already mentioned with the aid of irrigation by means of the ditch [392]*392aforesaid, and the water flowing therein, anci on or about the 18th day of June he observed that practically no water was running down the ditch to his land. He went up the ditch to discover the cause, and found that Stoner was taking out nearly all the water flowing in the ditch, and conducting it through two sluice gates upon his land. He had some conversation with Stoner that day and also the following day about the matter, and demanded that he stop taking the water. Not receiving satisfactory responses, he said to Stoner that he would bring suit, and he testified that Stoner replied to the threat that he would bring suit: “That’s just what I want you to do; go on; I’ll fix you.”
The person employed at the time by Stoner to irrigate his land testified that he was taking out of the ditch twice as much water as Stoner’s land required; and that he did so under Stoner’s instructions; that the latter directed him to turn all the water he could, so that Mau would not get any, stating that he had been wanting a law suit with him and he was going to break him. He testified, however, that he let enough water go through to supply Aaron Stoner and Victor Forgeon. Another witness also testified to threats previously made by Stoner to prevent Mau from getting any of the water flowing in the ditch.
On the other hand, Stoner testified that he had made no threats; and that at the time in question two-thirds of the water was passing his place. There was also other testimony on behalf of Stoner to the effect that there was water in the ditch at Mau’s place when he complained of having none; but it is not clear that even the testimony produced by Stoner showed that the quantity of water to which Mau claimed to be entitled reached his land. It was also shown that at the same time both Aaron Stoner and Victor Forgeon were using water from the ditch. The defense attempted to discredit the testimony of the witness who took the water out of the ditch on Stoner’s land by showing that since then there had occurred some difficulty between him and Stoner. We do not propose to refer to all the [393]*393testimony upon this branch of the case. Other witnesses, both for plaintiff and defendant, were examined on this point, and it is sufficient to say that there is some conflict in the testimony as to whether during the period in question — from about June 18 to July -3 — Mau was able to get any water from the ditch; but the.testimony is ample to sustain the conclusion of the jury and the court that he was deprived of the water, and that the same was caused by the acts of Stoner in diverting it. The sanie may be said respecting the proof of the damages to his crops and other damages suffered by Mau in consequence of the diversion of the water; although there is less conflict on that point.
Considerable testimony was admitted in behalf of both parties concerning the work done by Stoner for the purpose of enlarging the ditch. It was. attempted to be shown by the plaintiff that Stoner had not in fact enlarged the ditch; and there is testimony that the capacity of the ditch was no greater in 1900 than it had been previous to the contract of 1897. The apparent object of the'-defendant was to establish that, in consequence of his enlárgement and extension of the ditch, he had acquired an interest in it as provided by the contract. We fail to understand the relevancy of a large part of the evidence bearing on that subject. Assuming that Stoner had enlarged the ditch to the full extent contemplated by him when he entered into the agreement of 1897, Mau would clearly be entitled to receive out of the ditch at all times five cubic feet of water; and Stoner conceded in his testimony that Mau was entitled to the first five cubic feet of water flowing in or conveyed by the ditch; and in our judgment the contract is to be so construed. This suit was not brought to determine the relative rights or interests of the parties in the ditch. That was a secondary consideration and- relevant only as affecting the rights of the parties to the water. It devolved upon the plaintiff to establish his right to the water alleged to have been diverted, and his right to have that water flow through [394]*394the ditch in question down to his land, where he could use it.
Whatever right or interest Stoner had in the ditch, he had no right to use or divert the water therein to which Mau was entitled, to the latter’s injury. The contract provides that when enlarged Mau “shall have the right at all times” to draw from said ditch through two openings or sluice gates five cubic feet of water; and that all the water flowing in said ditch “in excess of said five cubic feet” shall be the property of Stoner. Thus by the terms of the contract Stoner recognized the ownership and right of Mau to the first five cubic feet of water, and agreed that the water to which he shall be entitled as against Mau shall be the excess over and above such five cubic feet.
We do not think that the contract is to be construed as requiring Stoner to furnish and deliver to Mau the water to which he is entitled, but it does in effect require him to abstain from any willful act that may prevent that amount of water from flowing down the ditch to Mau’s land. Or perhaps it is more correct to say that, by reason of the facts, the law imposes that obligation upon him.
This brings us to a consideration of the instructions given to the jury. Before considering them, it will be necessary to dispose of a preliminary question affecting the record in respect to the instructions. The instructions given at the request of defendant are not embraced in the bill of exceptions, while those given at request of plaintiff are embodied in the bill. It is, therefore, urged that the instructions are not entitled to the consideration of this court. But all the instructions are returned with the original papers, and each instruction is numbered, noted as given and signed by the judge. This raises a question that we believe has not been directly decided by this court as to civil cases; although there may be found in some of the opinions expressions indicating that all instructions given or refused must be preserved by bill of exceptions to become part of the record. We have so held in criminal cases. (Van [395]*395Horn v. State, 5 Wyo., 501.) But the statutory provisions in the matter of instructions in respect to civil and criminal cases differ in an important particular.
Section 3644, Revised Statutes, prescribes the mode of jury trial in civil cases. It provides that before the argument of counsel is begun -the court shall give such instructions upon the law as may be necessary, which instructions shall be in writing and be numbered and signed by the judge. The seventh and last paragraph of the section reads as follows: “When either party asks special instructions to be given to the jury, the court shall either give such instructions as requested, or positively refuse to do so; or give the -instructions with modifications, and shall mark or endorse upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner those refused, so that either party may except to the instructions given or refused, or modified or to the modification. All instructions given by the court must be Med, together with those refused, as a part of the record
As the object of a bill of exceptions is.to bring into the record matters which otherwise will not constitute a part of the record, it seems to be unnecessary in civil cases for the purposes of review to embody the instructions in a bill when they are in writing, numbered, signed by the judge and so marked or endorsed as to show which were given, refused or modified, aiid filed as the law prescribes. The statute expressly requires them to be filed as a part of the record. (Blashfield on Inst, to Juries, 370.)
Objection is raised to the first instruction given at the request of plaintiff below on the ground that it introduced an issue not raised by the pleadings and upon which there was no testimony. It seems to us that counsel misconceives the nature of the instruction. It charges the jury in substance that an abandonment of the appropriation of water does not result from a change in the mode-of diversion, and the abandonment of the ditches by - which diversion was [396]*396first made and the use of others in place thereof; and that if plaintiff had abandoned a portion of his ditch as first constructed and used another in. place thereof, that fact would not affect his water right, so long as he continued the use of the water without unreasonable cessation. In view of the contract and the obligation of Stoner thereunder, there may be some reason possibly for the claim that the instruction introduced a matter not controverted by the evidence. But the plaintiff alleged that he had secured a water right and the answer denied the allegations of the petition in that regard. Under the pleadings, the right of Mau to the water alleged to have been diverted was put directly in issue. Much testimony was produced showing the abandonment of a portion of Mau’s original ditch and the substitution of another channel for the conveyance of the water. Doubtless the instruction correctly states the law as an abstract proposition. We need not, however, enter upon any discussion of the question, nor decide it as affected by any other facts than those disclosed in the case at bar. For the convenience of the parties in taking water for their use respectively from the same stream and the same point of diversion, they consolidated their ditches under an agreement settling their relative rights both as to ditch and the water diverted thereby; and it is evident that as against Stoner, which is all that need be decided, Mau did not abandon his right to the water formerly conveyed through his ditch. It was claimed on the trial that the ditch, as it existed in 1900, was Mau’s property, and that Stoner had no interest in it. We can perceive no impropriety or error in giving the instruction. We are unable to see that it could have the effect to mislead or confuse the jury.
The second instruction is objected to because it states that Mau had a right to five cubic feet of water per second of time in the ditch in question during the months of June and July, 1900. It is not pointed out in the brief why that statement is erroneous. The contract so provided; and Stoner [397]*397so admitted in his testimony. The instruction further informed the jury that if during that time, or for any portion 6f the time, Mau was deprived vof said water, or any part thereof, by reason of the acts of Stoner, and that Mau’s crops were damaged by reasón of such acts, if they should find that Stoner did so act, then they must find for. the plaintiff. The only objection urged against the instruction is that stated above. We think it correctly stated the situation as between the parties to the action.
The fourth instruction given at the request of the plaintiff is objected to on the ground that it misconstrued the contract. That instruction was to the effect that unless the defendant, Stoner, had enlarged the ditch, known in 1897 as the Mau canal, to a sufficient capacity to irrigate 2,060 acres of land, over and above its then carrying capacity, he acquired no interest therein. By that instruction the contract was construed as requiring Stoner to enlarge the ditch to the full extent authorized under the contract before he could acquire any interest 'whatever in the ditch. It is evident that the instruction was given in view of certain other instructions given at the request of defendant to the effect that if the ditch had been enlarged, and the ditches of the parties had been consolidated, and water used therein by both parties thereafter, they would be joint owners of the ditch, and plaintiff could not recover in this action, the statute having provided another remedy.
'It seems to have been contended throughout the trial that if the parties were joint owners of- the ditch the sole remedy of plaintiff was an application for the appointment of some person to distribute the water flowing in the ditch to the various owners according to their respective interests, as provided under the provisions of Sections 908 to 914, inclusive, of the Revised Statutes; and two of the instructions given at the reqrtest of defendant below adopted that theory. This doubtless accounts for much of the testimony elicited upon the subject of the work of enlargement claimed to have been performed by Stoner under the contract; and [398]*398accounts also, we think, for the fourth instruction given at plaintiff’s request.
The theory that the plaintiff could npt recover in the action in the event that the defendant and himself were joint owners of the ditch cannot be sustained. As the plaintiff in error requested the instructions that were given to that effect, he cannot complain that they were erroneous. And as they were erroneous, it is immaterial that the jury disregarded them. It is argued that the evidence clearly shows a consolidation of the ditches of the plaintiff and defendant, and the joint use of water from the same ditch— the ditch in question — from 1897 to 1900, inclusive, and that under the instructions of the court those facts constituted the parties joint owners of the ditch; and hence, under such instructions, the plaintiff was not entitled to a verdict, as they were instructed, the plaintiff in such case could not recover. It is evident, however, that the court did not regard the evidence as clearly showing joint ownership, in view of the court’s construction of the agreement of 1897. For the jury were also informed that defendant acquired no interest whatever unless his enlargement of the ditch had been sufficient to irrigate the entire 2,060 acres of land which the contract permitted him to do. Hence, on the question of joint ownership, it was left to the jury to determine whether or not the enlargement had been such as to give the defendant an interest in the ditch, and hence sufficient to constitute them joint owners. It is possible that the fourth instruction given at plaintiff’s request, construing the contract as requiring the enlargement to the full capacity permitted by the contract as a condition precedent to the acquirement of any interest on the part of defendant, is inconsistent with the instruction given at the request of defendant, to the effect that a consolidation of the former ditches of the parties and the use of water from the consolidated ditch in common by both parties thereafter, would render them joint owners of the ditch. But, if so, we think such inconsistency immaterial in view of the sole issues involved in the case.
[399]*399It seems to us that the evidence shows that the separate ditches formerly used by the parties were consolidated in 1897, and that until the summer of 1900 thereafter both parties took water therefrom; the water previously appropriated by Mau flowing through -the new or consolidated ditch. But there was some testimony to the effect that the consolidated ditch was of no greater capacity than Mau’s original ditch.
However, assuming that Stoner had enlarged the ditch to the fullest extent permissible under the contract, and that he and Mau were joint owners in the ditch, that circumstance would not prevent a recovery by Mau in this action. The instructions in that respect’were doubtless based upon the provisions already alluded to concerning the distribution of the water in an irrigating ditch jointly owned by two or more persons. (R. S., Secs. 908-914.) We are not aware of any other statutoiy remedy that could have been intended; and that statute does not provide a remedy for the injuries alleged to have been suffered by plaintiff, nor does it afford the relief to which he was entitled upon the facts alleged. That statute provides in substance that whenever two or more joint owners in an irrigating ditch are unable to agree relative to the division or distribution of water received through such ditch, any such owner or owners, or either of them, may apply to the District Court by a verified petition, asking for an order appointing some suitable person to take charge of the ditch for the purpose of making a. just distribution of the water to the several persons entitled to the waters received through the ditch. A summons is required to be issued upon the filing of such petition, and a hearing is authorized before the court, the judge in chambers or the Distinct Court Commissioner; and it is provided that the decision shall be final. The order authorized to be made by the court, judge or commissioner is one appointing some suitable person, not personally interested in the ditch, to divide and distribute the water of the ditch as in his judgment justice may require, [400]*400according to the rights of the several owners; and such appointee is given exclusive control of the ditch for the purpose aforesaid until he may be removed by the order of the proper court, judge or commissioner.
We do not think 'the statute is intended as a substitute for an action for damages, or injunction. It certainly provides no means whereby one who has suffered injury through the wrongful diversion of water by another may recover damages for that injury. And, although it may be true that by pursuing the remedy provided by the statute an injunction might be rendered unnecessary to prevent a continuance of the wrong and resulting injury, we cannot regard the statute as depriving the courts of their equitable jurisdiction in such cases. There is nothing in the statute referred to indicating that it was adopted as an exclusive remedy in cases of disagreement among joint ditch owners.
The instruction to the effect that in case the jury found the parties to be joint owners of the ditch the plaintiff could not recover in the action being erroneous, we would hardly feel justified in reversing the judgment on the ground that the instruction was disregarded.
It is unnecessary to decide in this case whether or not the fourth instruction given at request of plaintiff embraces an erroneous interpretation of the contract. Conceding the instruction to be erroneous, it could not have operated pre-judicially to the plaintiff in error. Notwithstanding the fourth instruction, the jury were informed by the third instruction requested by plaintiff that, even though they should find that Stoner did so enlarge the ditch, the plaintiff was entitled to the first five cubic feet of water flowing in the ditch, and that was a correct statement of the law under the contract and the evidence. Conceding that Stoner had acquired an interest in the ditch, he was clearly without right to divert to Mau’s injury the first five cubic feet of water flowing therein. If he wrongfully diverted that water and Mau suffered damage thereby, it is no defense in this action that Stoner is a joint owner of the ditch.
[401]*401On the other instructions the case was fairly presented to the jury. They were instructed that the defendant was not required to furnish five cubic feet of water per second of time to the plaintiff, but was required to allow that amount of water to flow through the ditch past his land; and that instruction was given at request of defendant, the plaintiff in error here. They were also instructed that if the plaintiff had failed to prove by a preponderance of the evidence that defendant prevented the above mentioned amount of water from flowing through the ditch during the time plaintiff claimed to have been deprived of the water he could not recover; that the burden rested upon plaintiff .to prove that defendant prevented the water from flowing through the ditch .past his premises, and if plaintiff had failed to establish that fact the verdict should be for the defendant.
The issue presented for determination in this action was not primarily the ownership of the ditch. Evidence upon that matter was no doubt admissible as tending to show the right of the plaintiff in error, Stoner, to divert any of the water conveyed through, the ditch. The questions at issue were whether plaintiff in error had tortiously diverted water from the ditch to which Mau was entitled, to his injury and damage, and had threatened to continue such acts under such circumstances as would render it proper and equitable to restrain the same.
We are unable to perceive any prejudicial or reversible error in the record, and the judgment will be affirmed.
Affirmed.
Corn, C. J., and Knight, J., concur.