In the conclusion which has been reached by my associates in this case, I am unable to concur. There is much, however, in the opinion delivered by the Chief Justice from which I do not dissent. The vice in the view which has been taken, if I may be allowed to say so, lies in the circumstance that too strict an application has been made of the rules of the old common law (I say old, because the common law is a science of perpetual growth) to the acquisition and protection of water rights in the mineral regions of this State. Those rights are, to a considerable degree, sui generis. They are in a great measure the growth of this State, and are founded upon conditions which are, in many respects, strange to the old common law. Too close an application of the rulés of the common law in vogue under different circumstances leads to mischief rather than a just settlement of legal controversies. Such rules must be modified to meet the exigencies of the changing pursuits of the people, or, in other words, a loose rein should be given to the spirit of the common law, that it may adapt itself to the new conditions and relations with which it has been called upon to deal in this State. The rules of the common law are not rigid, but flexible—its remedies are not stinted, but co-extensive with the *323rights of person and property, and responsive to all the demands of justice. If the remedies already provided are inadequate, it provides a new one, to keep good its boast that there is no wrong without a remedy and no right without a shield. If new or peculiar rights arise, they are none the less entitled to the protection of the Courts, notwithstanding the technicalities of trespass, guare clausum fregii, or vi el armis, case, ejectment, or hills in equity may seem to stand in the way. The greatest beauty and crowning glory of the common law is its adaptability to new conditions. It adapts itself to every change, and provides a remedy for every wrong. If what the plaintiff has stated in its complaint be true—and for all the purposes of this occasion I must assume that it is—it has failed to obtain all to which it is, in my judgment, entitled, and that, too, without any fault or defect in the law. Without further reference to the opinion of my associates, I will briefly state the reasons why I think the judgment of the Court below should be reversed and a new trial allowed.
The second count in the complaint is a copy of the first, with the following language added: “And plaintiff avers and shows to the Court that the said defendants are continuing and threaten to continue, and, unless restrained by the order of this Court, will continue all and singular the wrongs and injuries aforesaid toward this plaintiff; that if defendants are permitted to continue the wrongs, injuries, and interference with plaintiff’s rights aforesaid complained of, as they are now doing and threaten to continue to do, the injury and loss to plaintiff will be incapable of compensation in damages, and plaintiff’s property, rights, privileges, and appurtenances above described, will be refidered wholly valueless to plaintiff, and the injury to plaintiff be irreparable.”
The Court below held that the first count contained a cause of action, and if so, the second did. for it contained all that the first contained, and more. The matter contained in the second count which is not contained in the first tends *324in no respect to negative or avoid the matter which is common to both. The only question, therefore, which could have arisen in respect to the second count, and could not have arisen in respect to the first, must necessarily have related to the kind and measure of relief to which the plaintiff was entitled upon the case stated. While, therefore, it does not appear from the record, by direct statement, upon what ground the Court below sustained the demurrer to the second count, the inference is unavoidable that it was sustained upon the sole ground that the facts stated did not entitle the plaintiff to the equitable relief demanded. Concede such to be the fact, it constitutes no reason for sustaining the demurrer. The prayer of a complaint, or of a separate count, is not the subject of a demurrer. A demurrer does not raise the question whether, upon the facts stated in the complaint, the plaintiff is entitled to the particular relief which he demands, but whether he is entitled to any relief whatever. It brings in question the sufficiency of the cause of action stated in the body of the complaint, and if, upon the facts there stated, the plaintiff is entitled to any relief whatever, either at law or in equity, the demurrer must be overruled, notwithstanding the plaintiff may have mistaken the relief to which he is entitled, of may have asked for relief in equity when he is only entitled to relief at law, or vice versa. A plaintiff is not to be turned out of Court merely because he does not demand the proper relief. If he does not, it is nevertheless the duty of the Court to grant him such relief as he may be entitled to upon the facts of the case. (Practice Act, Sec. 147; Lane v. Gluckauf, 28 Cal. 294; Corcoran v. Doll, 32 Cal. 88; Marquat v. Marquat, 2 Kernan, 336; Jones v. Butler, 10 How. Pr. 189.) It follows that, if the Court below was right in overruling the demurrer as to the first count, it erred in sustaining it as to the second. That the Court was right in sustaining, the first count there can be no doubt. Whether the facts there stated constitute merely an action of trespass, guare clausum, fregit, at common law, and not an action of ejectment, is wholly *325immaterial, so far as the demurrer is concerned, for the reasons already suggested. For the purpose, however, of relieving the case of that question, it is proper to say that the facts stated, if true, are sufficient to entitle the plaintiff to a judgment of restitution, if he demands it. Had he demanded it in his first count, he would have been entitled to it upon the verdict. The claim of the respondents that the facts stated do not entitle the plaintiff to restitution, is without substantial foundation. It is founded wholly upon the technicalities of the law of ejectment. It is argued that upon the facts stated the plaintiff shows at best but a mere right to the use of running water, and that such a right cannot be recovered in an action of ejectment. It is undoubtedly true that at common law a watercourse eo nomine cannot be recovered in ejectment, the reason being that the possession of running water, from the nature of the thing itself, cannot be delivered by the Sheriff; hence the rule that the action must be laid for the land over which the water runs. But that is a technical rule of no sensible application to the conditions of this and other like cases, in view of the peculiar character of the water rights which are acquired and held by ditch and water companies in the mineral regions of this State, and the peculiar system of practice which prevails in our Courts. Such rights are not necessarily acquired or enjoyed by virtue of any title to the land over which the water runs, or any grant from the riparian proprietor, but may be acquired by mere appropriation and use of the water, without even a pretense of title to the land or any grant from its proprietor. Such practice does not require a plaintiff to come into Court with a lie in his mouth to meet the requirements of some technical form, but permits him to state his case according to the truth, and does not deny him relief because he does not found his claim to it upon a fiction. Such rights are not mere incorporeal hereditaments—they have come to be something more by a usage and custom which has prevailed in this State from the beginning, and has become a part of its common *326law. By his diversion and appropriation the ditch owner acquires more than a mere natural or artificial easement in the water; he converts it into a species of merchandise, which he garners in his ditches and reservoirs—which he conveys to market, and measures out and sells for a price; and he does this not by virtue of any ownership of the land or any grant from the riparian proprietor. Such rights were created by the necessities of the country, and have been sustained and protected by the Courts upon grounds of public policy. If a party has once acquired them and is ousted therefrom, he may sue to recover them by their true name of water rights; and if the trespass is of a continuous and irreparable character, he may sue to enjoin the trespasser; and, under our system, he may do all this in one action, which is called a civil action, and it is of very little consequence whether it would be called, at common law, an action of ejectment, trespass, case, or a bill in equity, or all combined.
The plaintiff alleges, in substance, that fat a time stated) it had appropriated and was the owner of and in the possession, use, and enjoyment, and ever since has been and still is the owner, and entitled to the possession and enjoyment of a certain water right and its appurtenances, namely: the right to all the waters of the South Yuba River (at a certain point which is particularly described) for mining and other purposes, and the right to divert the same, and was in the actual and diligent exercise of such right by means of a dam in course of construction, and of a canal projected, surveyed, and commenced; and, being so the owner and possessed, the defendants wrongfully and with force and arms entered upon said rights, privileges, and appurtenances, and expelled the plaintiff therefrom, and have thence hitherto excluded the plaintiff. This is a good cause of action, notwithstanding it appears that, at the date of the ouster, the plaintiff had not yet actually diverted the waters of the South Yuba from their natural course. The plaintiff had located a dam and canal, the only means by which the right claimed could be enjoyed, and was diligently engaged in their construction.
*327This location was the inception of the plaintiff’s water right, and from that time the plaintiff" was entitled to be protected in its possession, as well before as after its beneficial enjoyment. The defendants had no more right to dispossess the plaintiff before its dam and canal were completed than they would have had after the dam and canal had been completed and the water actually turned into the latter. Upon the facts stated, it follows that the plaintiff is entitled to damages for the ouster, and to be restored to the possession of its water right, and dam and canal site. There is nothing, however, in either count which entitles the plaintiff to an injunction. It is not alleged that the defendants are doing any acts which will irreparably injure the water right of the plaintiff, or its dam or caual site. The only case made . against the defendants is a wrongful ouster and a continued dispossession of the plaintiff, for which the latter can find an adequate remedy at law. Whether the Court below ought to have rendered judgment of restitution upon the verdict of the jury, it is unnecessary to decide. Upon that head, it is sufficient to say that such relief was within the issue, as tendered by the first count, although not expressly demanded; and if the question of title was actually tried, the Court, in its discretion, under the one hundred and forty-seventh section of the code, could have granted it, and allowed the plaintiff to amend its prayer to suit the judgment. The prayer at the conclusion of the second count is broad enough to include restitution, but the plaintiff was denied of its benefit by the erroneous ruling of the Court upon the demurrer to the second count. The case has been here before, (28 Cal. 673,) and I am satisfied that there has been some confusion of ideas as to the true nature of the plaintiff’s case and its mode of treatment, which has operated to prevent a full and fair determination of the plaintiff’s rights in the premises. By striking out the second count and adding to the first a prayer for restitution, I think the plaintiff’s case could have been fully and intelligibly presented, and that a new trial should have been allowed for that purpose.