ON PETITION EOR REHEARING.
AILSHIE, C. J.A petition for a rehearing has been filed in this ease, in which counsel discuss the main proposition considered and disposed of in the original opinion.
We find no reason to change or alter the views heretofore expressed by the court upon these questions. Our attention, however, has been called to one matter which should have been considered by the original opinion and which was evidently overlooked. The appellant brought to the attention of this court the action of the trial court in denying and overruling his motion to retax the costs in the case, and appellant has assigned that action of the'court as erroneous. The appellant commenced his action against respondents to procure an injunction restraining respondents from maintaining a cribbing or breakwater in the river. Respondents answered, traversing the principal allegations of the complaint, and also filed a cross-complaint alleging that appellant was maintaining an obstruction on his side of the stream which was causing damage to the defendants, and prayed for an injunction restraining the plaintiff from continuing to maintain this obstruction, and also alleged that defendants had sustained $11,000 damages and prayed judgment against him for that sum. All these questions were tried, and the trial court, after hearing all the evidence, concluded that neither party was injured nor damaged by the other, and that neither could recover damage from the other nor have an injunction. Notwithstanding this conclusion, the trial court taxed all the costs of the case up against the plaintiff, who is appellant here. This, we are satisfied, was erroneous. Under the facts *233of this case, each party ought to have been required to pay his own costs.
We think the fair construction of secs. 4901 and 4903, Rev. Codes, requires the taxing of costs incurred by each party up against the party who incurred such costs in a ease like the one under consideration. We do not understand either Bemmerly v. Smith, 136 Cal. 5, 68 Pac. 97, or Abram v. Stuart, 96 Cal. 235, 31 Pac. 44, as opposed to this construction and holding.
Counsel has also suggested that the appellant should have the right to maintain an action against respondents for the purpose of recovering compensation for any damages incurred since the trial of this case by reason of the erection and maintenance of the cribbing which was the subject of appellant’s action in this ease. That question is not involved in this ease, and of course cannot properly be discussed or considered.
It would seem clear, however, that the judgment' in this action is no bar to the appellant’s right of action against respondents for any damage which he may have sustained since the trial of the present case if he is able to establish that he has sustained damages. We conclude, therefore, that the judgment in this case must be modified to the extent above suggested. The cause will therefore be remanded to the district court, with direction to tax the costs incurred by each party against the party who incurred the same, and if any item of costs has been incurred alike by both parties, that such expenditure be divided equally between the parties.
Costs of this appeal will be equally divided between appellant and respondents.
Sullivan and Stewart, JJ., concur.