Terry, C. J., and Field, J., concurring.
*224This case was before this Court at the January Term, 1857. (7 Cal. Rep., 261.)
1. It is objected that the Court erred in not rendering judgment for defendants, upon the special verdict of the jury. But this objection is overcome by the fact that the case was submitted by counsel of the parties, to the Court, with the agreement that such additional facts should be found by the Judge, as would, in his judgment, be sufficient to present all the questions raised by the pleadings.
2. The jury found that the plaintiffs were the owners of the ditches claimed by them; and there was, therefore, no nonjoinder of the parties plaintiff.
3. The suit was properly brought to test the question as to the priority of appropriation; and the prayer for an injunction, to prevent future injury, was proper. The defendants set up a right in themselves, claiming to be the prior appropriators of the water.
4. There was no misjoinder of causes of action ; and if there had been, the objection was waived by failing to demur to the complaint. (Gates v. Keiff, 7 Cal. Rep., 124.)
5. The Court did not err in rendering judgment for costs, though the amount of damages recovered was less than two hundred dollars.
6. There was no substantial difference between the special verdict of the jury and the finding of the Judge, as to the fact that the water was diverted by the original contractors of the main ditch for mining purposes. It appears, from the finding of the Judge, that it was constructed both as a drain and as a channel to convey water for mining purposes.
Judgment affirmed.