On Petition for a Rehearing.
Niblack, J. —There were two trials of this cause in the circuit court, the first resulting, as did the second, in a finding and judgment in favor of the appellees.
After the first judgment was entered, the appellants asked for, and as an alleged matter of right, and over the objection of the appellees, obtained, an order setting it aside and granting a new trial in the cause, upon the theory that the proceeding was, in its main features, an action to quiet title to real estate.
Upon the completion of this appeal, the appellees assigned, cross errors upon the decision of the circuit court thus setting aside the first judgment and granting a new trial.
Accompanying their petition for a rehearing, the appellees have submitted an argument elaborately repeating and earnestly emphasizing their original assumption that this was primarily an action to quiet title, and only incidentally for an injunction. They claim, in connection with other arguments, that as the appellants participated in the first trial, and obtained a new trial as an alleged matter of right on that theory, they are now precluded from asserting that the action was not to quiet title, and that we are hence constrained to consider it here as an action prosecuted for the principal purpose of quieting title. But it is by the general tenor and scope of the pleadings, and not by what may have been said or done at the trial, that the real nature of the action must be determined. See W. U. Tel. Co. v. Reed, supra, and Sims v. Smith, supra.
For the reasons given at the former hearing, we adhere, with unabated confidence, to the .conclusion then reached, that this was simply and only a suit for an injunction, and not, in any just or proper sense, an action to quiet title to real estate.
Filed April 4, 1885.The appellees, conceding our possible adherence to our former conclusion that this was not an action to quiet title, contend, with apparently much confidence, that our theory as to the essential nature of this action leads us, inevitably, to a revei’sal of the judgment last rendered, and of the order granting a new trial as a supposed matter of right, and to an affirmance of the first judgment. When, however, a judgment is reversed for error intervening, the reversal extends back to and includes the first available error in the proceedings below. In this case the first error with which we were confronted was the overruling of the demurrer to the first paragraph of the complaint, and to reach that error all subsequent proceedings had to be annulled and set aside.
It is further contended that upon the facts averred it ought not to have been inferred that the'appellees had notice, for any considerable length of time before the commencement of this suit, of the great and increasing amount of water which the appellants intended to úse, and were likely to divert from the channel of Eel river, and that hence we erred in holding that the appellees had acquiesced for an unreasonable time in the diversion of the water complained of before commencing this proceeding for relief.
This argument is based, seemingly, upon a confusion of some of the facts testified to at the trial, with the averments of the first paragraph of the complaint. As has been stated, that paragraph charged that at the time it was filed the appellants were, and for more than five years then last past had been, daily and continuously, diverting large quantities of water from Eel river, equal in force to twenty-five horsepower, and it was from that allegation that our inference as to the fatal acquiescence of the appellees was drawn.
The petition for a rehearing is overruled.