Gale & Elliott v. Tuolumne Water Co.

delivered the opinion of the Court—Terry, C. J. concurring.

This case was brought for the recovery of damages for diverting water to which the plaintiffs assert they were entitled, and also for preventing the plaintiffs—prior locators entitled to the water—from getting it.

The complaint is not very artificially drawn, but we are inclined to think, under the liberal views we have taken of the pleadings in these cases, that it was not properly demurrable for duplicity, or the joining of several distinct causes of action in one count. The gravamen of the plaintiffs’ action seems to be the diversion, by the defendants, of water to which the plaintiffs *28were entitled; and the fact that the diversion was accomplished hy turning the water out of its legitimate channel by one moans or another, is not important enough to require several counts disclosing the different modes of diversion. But the defendants demurred, on the ground that these matters were several and distinct causes of action; and the Court sustained the demurrer. The plaintiffs then, by leave, amended their complaint, making two counts of the matter contained in their original complaint instead of one.

They now complain of the error of the Court in sustaining the demurrer. But this they cannot do. They chose to amend. They went to trial on the pleadings thus amended. If they desired to test the question as to the correctness of the judgment sustaining the demurrer, they should have left the pleadings where the judgment left them. They could not take all the advantage of the pleadings as they made them, and also the advantages of the rulings of the Court before their amendment. The authorities cited by the Respondent, as well as the reason of the rule, are conclusive upon this subject. They really got all the advantage from the pleadings on the trial, which they could have got from them if the demurrer had been overruled.

The plaintiffs filed an amended complaint, setting out in different counts the substantial matters contained in their original complaint. It seems that no answer was made by the defendants to this pleading—there was an answer to the original complaint—nor was any default taken for the failure of defendants to answer: but the parties went to trial, as if on issue joined by the pleadings.

It is now assigned for error that this judgment was wrong. If the plaintiffs failed to ask a judgment by default for the failure to answer, and, further, chose to go to trial as if there had been a regular issue, (as there was by the answer to the complaint,) taking no objection to the answer—though this answer presented issuable matter—nor to the failure to answer the amended plaint—we think they are precluded from objecting, after they tried the experiment of holding the defendants on these pleadings and failed. They took the chances, and if they had succeeded, the defendants could not have objected to the result, and when they fail, they must abide the judgment. At *29all events, we cannot hear such an objection for the first time here.

We see no force in the other points made.

Judgment affirmed.