concurring:
I concur in the conclusions announced by my associate, but upon grounds different from those stated. Because of the opposite views expressed by counsel as to the character of this action it is made necessary to determine, in the first instance, the respondents’ right under the pleadings, and what were the issues to be determined upon the trial. It is the contention of appellant that the action was in equity, and the contention of the respondents that it was an action at law for damages, and for an injunction to prevent further injuries.
This action was a mixed action, appealing to both the equity and law side of the court. The primary object and purpose of the suit was to establish and protect respondents’ right to the use and enjoyment of 145 inches of water for the irrigation of their land, flowing in the Steamboat Canal, a water ditch used and operated for many years by the appellant company, and its predecessors in interest, for conveying waters appropriated from the Truckee River to lands situate under its system, and delivering the same for a valuable consideration. In addition to the equitable relief sought, the respondents, in substance, allege that their crops had been greatly damaged during the years 1909, 1910, 1911, and 1912, by reason of the appellant’s failure or refusal to *45deliver to respondents the specified amount of water; that the appellant threatens to and, unless restrained, will divert, and continue to divert, the water flowing in said canal to other users subsequent in right to that of respondents, to their irreparable injury and damage. They allege damages in the sum of $5,870; and pray judgment for said sum, and for an injunction.
Appellant denies the averments of the complaint, and for an affirmative defense alleges, that the land of respondents, being situate at the extreme end of the canal, approximately thirty-two miles from its source, has never been supplied with any specified amount of water, for the reason that it was impossible so to do because of the situation of the land, and that by reason of its situation it was always understood that respondents should receive such amount of water as appellant could furnish, and should pay therefor irrespective of any particular or specified amount; that such had been the entire course of dealing, and that at no time was there any understanding, contract or agreement otherwise or different.
Upon this averment the respondents joined issue, and by way of defense alleged:
“But in this behalf plaintiffs allege, that defendant promised and agreed to supply plaintiffs with 145 inches of water through its ditch.”
The manner in which the case was tried is not to be commended. (Simpson v. Harris, 21 Nev. 375.) The whole case was submitted to a jury without request for special findings. Where legal and equitable issues are raised by the pleadings the latter can be tried with or without a jury (Treachuay v. Wilder, 12 Nev. 108), but it is conceded to be proper in such cases to in some manner keep the issues separate. (Low v. Croton Point M. Co., 2 Nev. 75.) The jury returned a general verdict in favor of respondents and assessed their damage at $4,500. The court made full findings of fact, and “established and sanctioned” the verdict by making it a part of its findings (Duffy v. Moran, 12 Nev. 94), and *46decreed that the appellant be enjoined from diverting, or permitting to be diverted, the specified amount of water, or any part thereof, so that the same shall not flow to and upon respondents’ land for the irrigation thereof.
It is the contention of the appellant that the cause being one in equity the case should be reversed for want of findings, or for the failure of the court to find upon the evidence adduced in support of its affirmative defense, be it true or false. (Warren v. Quill, 9 Nev. 259.) I am impressed that this defense was framed and directed to meet the issue of damages. It was certainly no defense to respondents’ right to an injunction. If the understanding between the parties, at the time of the purchase of the Barney tract in 1904, be considered as a contract binding respondents for all time because of the situation of the land to receive such amount of water as appellant could furnish, it was without consideration. The verdict of the jury and the court’s adoption thereof was a sufficient finding against the appellant upon this issue, and it was not prejudiced by the court’s failure or refusal to make a special finding. Furthermore, the case was tried by a jury. (Rev. Laws, 5345.)
I concur in the view taken by my associate that the record fails to show a clear, legal right in the respondents to the use of the full quantity of 145 inches of water flowing in the canal at the periods named in the complaint, but I am satisfied that the record does show the respondents to be entitled to the flow of 125 inches of water. But being entitled to an injunction establishing a right to the use of 125 inches of water, it does not necessarily follow that they are entitled, as a matter of law, to damages for past injuries. It is obvious from the testimony of A. G. Pincolini, a witness for respondents, and from the testimony of A. Pincolini, one of the respondents, that the origin or source of their damage was attributed to the breach or nonperformance of the appellant’s agreement or promise to supply *47respondents with 145 inches of water, and not the breach of a duty imposed by law. The cause of action being for breach of contract, and the trial being in form tort for appellant’s failure to perform a duty imposed by law, such error, though unassigned, requires reversal of the judgment. (Galveston H. & S. A. Ry. Co. v. Hennigan, 76 S. W. 452.) But I do not reverse the judgment upon this ground, for the reason that it appears from the instructions given the jury at the request of respondents, that the trial court took the view that the action was a breach of a public duty, a duty imposed by law, though involving in this breach a breach of contract also. (Central R. & B. Co. v. Roberts, 18 S. E. 315.) But it appears that the court was called upon to deal with another state of facts before it could instruct that the appellant was liable for such damages as were the natural consequence of appellant’s failure or denial to deliver the water. There was much evidence adduced which clearly tended to show that respondents, by their acts and conduct, waived the duty imposed by law upon the appellant to supply the specified amount of water. This court in the case of Prosole against the appellant company (37 Nev. 154) declared that it was the duty of the diverting corporation in cases of this kind, where a consumer has established his right to the use of water, to continue the service, provided the consumer has never waived his rights nor forfeited the same. It is a maxim of jurisprudence “that he who consents to an act is not wronged by it,” and certainly one cannot waive a tort and sue for it in the same action.
Judge Cooley says:
“Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to * * *. A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged.” (Cooley on Torts, 3d ed. p. 282.)
*48When an action is tried as an action at law, and so treated by the courts and parties, it should at least be fairly submitted to the jury and the law correctly stated to them. This was not done, taking into consideration the evidence tending to show that the respondents by their acts and conduct waived the duty imposed by law upon the appellant to' supply respondents with a specified amount of water during the periods named in the complaint.
McCarran, C. J.:I have not participated in the foregoing opinion, nor in the consideration of the case as it stood before this tribunal, for the reason that the respondents here were at one time parties to a suit involving a subject somewhat related to the matter at bar and in which I appeared as attorney for the parties. This matter being brought to my attention by the learned counsel for the appellant, I deemed it proper to refrain from participation.