¶1Terry, C. J., concurring.
¶21. The complaint was very loosely drawn, and contains much useless verbiage; but taking it altogether, the facts stated were sufficient to sustain an action. The demurrer was to the whole complaint; and, not being good as to all, was properly overruled. There was no misjoinder of causes of action. (Gates and others v. Kieff and others, 7 Cal. Rep., 124.) The decision in the case referred to would seem to conflict with the decision in the case of Bigelow v. Gove, (7 Cal. R., 133.) The report of this latter case is so full as to give a clear idea of the ground upon which the decision is predicated. Bigelow & Co. alleged, substantially, that they were in possession of certain mining-claims, giving the exact metes and bounds; that the defendants entered into and *238held adverse possession of a portion of these claims, giving an exact description, by metes and bounds, of the portion so held adversely; that defendants had taken away, and were still taking away, from the portion held adversely, large quantities of gold-bearing earth, etc.; and that the defendants threatened to continue the trespass, not only upon the portion held adversely, but upon that portion then in possession of plaintiffs, and upon which no trespass had ever been committed. The prayer for •the injunction, pending the litigation, was general, and was not restricted to that .portion of the claims held adversely by defendants. We thought there was a misjoinder, as the equitable relief asked related to all the claims, and the legal to only a part. Had the plaintiffs sought no remedy against defendant for mere threatened trespass upon premises then in possession of plaintiffs, and upon which no trespass had ever been committed, the complaint would have been good. (Merced Mining Co. v. Fremont, 7 Cal., 130.)
¶32. There was no error in the decision of the Court upon the plea in abatement. It did not appear that any summons had ever issued upon the complaint, or that there had been any voluntary appearance on the part of the defendants. There was, therefore, no suit ponding; and the defendants failed to sustain their defence that there was another suit pending between the same parties, for the same cause of action. (Code, § 22.)
¶43. The rights of the parties, as to priority of appropriation, were fully settled by this Court in the former case between the same parties. (6 Cal. R., 548.) The plaintiffs having the prior right to the waters of the stream, had the right to use so much of it as was necessary to preserve their flume from injury while in process of construction; otherwise, they might never have been able to enjoy the right to which they were entitled.
¶54. The other assignments of error are not well taken.
¶6We And no error in the judgment of the District Court, and the judgment is, therefore, affirmed.