In this suit the plaintiff alleges that he has two mills on Eel river, on one side thereof, and that the defendants have one mill on the opposite side of said river. He further alleges that he is first to be supplied *392with water from the river, and that the defendants are only entitled to the surplus. He sues for an alleged taking of more than the surplus.

Issues were formed and tried, and the jury found specially that there was water enough in the river to run all three of the mills all the time; that the defendants did not take for their mill, more than the real surplus water; but that the plaintiff, by neglecting to keep his dam, or his half of the dam, in repair, permitted the water to go to waste. The jury found, also, a general verdict for the defendants.

Points are made here upon rulings of the Court on demurrers; but they are unimportant. The case has been fairly tried upon its merits, and the judgment must be affirmed.

The judgment is affirmed with costs.