of the water of said creek; therefore the plaintiffs ask that the defendants be adjudged to pay damages for their wrongful acts in the past, and be perpetually enjoined from continuing to commit them in the future.

It is urged that the complaint is fatally defective, because it contains no distinctive averments of the date of location, location, size, grade, or capacity to carry water, of any of the plaintiffs' ditches; and because it contains no averment that "Connor Creek," or any of the ditches are in the county of Trinity. But all these are subordinate facts tending to prove the ultimate fact of the legal right in the subject-matter of the action asserted by the plaintiffs. As subordinate facts they are not essential to the statement of the cause of action. When a state of facts is relied on to constitute a cause of action, it is sufficent to allege the facts simply, without setting out the facts tending to prove them. If the facts stated are sufficient to constitute a cause of action, their sufficiency cannot be successfully assailed by a general demurrer for imperfect averments of the facts. Such errors in pleading can be reached only be special demurrer. In the presence of a general demurrer a complaint is sufficient which shows that the plaintiffs have a clear legal right in the subject-matter of the action, and that the right is being materially injured by the wrongful acts complained of.

Here, the injury complained of is in the improper diversion of the water of a water course by the defendants as co-owners with the plaintiffs in the flow of the water; and the law is well settled that where any one of two or more co-owners in the use of the water of a stream, which has been appropriated by them for a beneficial purpose, diverts for use a greater quantity of the water than of right belongs to him, so as to perceptibly reduce the volume of water flowing in the stream, and to materially diminish the quantity to which others are entitled, in consequence of which they are damaged and their right violated, such parties are entitled to an injunction enjoining the wrongdoer from diverting the water to their injury: Story Eq. Juris, sec. 927.

II. By his answer each of the defendants asserted a right to use the water to a greater extent than the plaintiffs admitted belonged to them. The question therefore at issue in the case was the quantitative interest of the parties, plaintiffs and defendants, in the natural flow of the creek. Upon that question the plaintiffs gave in evidence, over the exception of the defendants, the judgment-roll in a former action, in which Henry Lorenz, one of the present plaintiffs, Nicholas Lorenz and Jacob Liebrandt were plaintiffs, and Bartol and Henry Jacobs (two of the present defendants), and David Evans and Charles H. Bartlett (two of the present plaintiffs) were defendants, for the partition, or sale, if a partition could not be had, of one of the ditches, mentioned in the complaint in this case, and "the first flow of the water of the creek, known as 'Conner creek,' to the extent of one thousand inches on a grade of two inches to the rod." To that action the parties defendant appeared and

answered. By his answer Henry Jacobs denied that "he was a tenant in common with the plaintiffs of the property described in the pleadings, or otherwise, or at all, or that he had or claimed any estate or interest therein." That answer raised an issue upon which evidence was taken. Upon the proof the court found for the defendant Henry; and, after finding that all the other defendants were tenants in common with the plaintiff, of the property sought to be partitioned, the court, after it had ascertained and determined the extent of the interest of the respective tenants in common, ordered a sale of the property, and a distribution of the proceeds between them according to their respective interests. A sale was had, which was afterwards confirmed, and final judgment was regularly entered.

The ditch property which was sold under that judgment was part of the property involved in this case. The judgment determined that all the parties in that action, except the defendant, Henry, were tenants in common in the property, and that the defendant, Henry, was not a tenant in common, and had no interest in the property. But these facts were directly put in issue and were found. The finding of the last fact would have been unnecessary if the defendant, Henry, had filed a disclaimer and had had the action dismissed as to him; but he did not. He took issue with the averment of the plaintiff's complaint. That was not the formal renunciation of all claim to the subject matter in the suit, which is known in law as a disclaimer: De Uprey v. De Uprey, 27 Cal. 335; Brooks v. Calderwood, 34, Id. 563. Having by his answer raised an issue which involved trial and determination, he became bound by the decision upon the question at issue, and the record of the judgment was admissible in evidence in this case, not only for the purpose of proving the extent of the interest in the property which the plaintiffs acquired at the sale, which was confirmed by the judgment, but also for the purpose of proving that the defendant, Henry, had no interest in the property: Morenhaut v. Higuera, 32 Cal, 294; Hancock v. Lopez, 53 Id. 362.

There is no prejudicial error in the record.
Judgment and order affirmed.

MCKINSTRY, J., concurred.

Ross, J., I concur in the judgment.

No. 8,144.

LOCKE V PETERS.

Department One. Filed April 29, 1884.

A DEMURRER MUST BE DIRECTED TO THE WHOLE OF A PLEADING, or to a particular and separate statement of a cause of action or defense. It cannot be directed to certain lines thereof.

TRESPASS FOR MESNE PROFITS-EJECTMENT JUDGMENT.-Damages for withholding real property, or for the rents and profits thereof, can not be recovered in an action of ejectment, unless judgment is also given for the recovery of the possession.

Appeal from a judgment of the superior court of San Joaquin county, entered in favor of the plaintiff. The opinion states the facts.

Terry, McKinne & Terry, for the appellant.

Byers & Elliott, for the respondent.

MCKINSTRY, J. If, (as alleged in the amended answer,) all the right, title or interest of plaintiff to the demanded premises was acquired from the Lodi Mill and Warehouse Company, after the execution and registration of the five years' lease by that company to Ellis, the entry of Ellis thereunder, and the occupation of defendant with the consent and approval of Ellis and the company, these facts would have been admissible under the denials of the complaintaverments contained in the amended answer.

The term of the lease was five years from March 30, 1880, and the present ejectment was brought January 3, 1881, and was tried on or prior to the fourteenth day of October, 1881.

If the demurrer of the plaintiff had been addressed to a separate count or defense in the answer, which alleged the facts above men tioned, we would not reverse the judgment, because of the order sustaining the demurrer, since the facts might have been proved under the denials. But the demurrer is to "all of defendant's amended answer, which occurs after line four, page two." The amended answer in the transcript is not numbered as to lines or pages. A demurrer must be directed to the whole of a pleading, or to a particular and separate count, or statement of a cause of action or defense.

* *

*

The verdict was: "We, the jury in the above entitled cause, find for plaintiff in the sum of five hundred dollars." Even if it should be conceded that the verdict passed upon the issues made by the pleadings, the judgment was erroneous and must be reversed. The judgment was: "Wherefore, it is ordered, adjudged and decreed that said plaintiff do have and recover from said defendant the sum of five hundred dollars damages, together with said plaintiff's costs and disbursements incurred in this action, amounting to the sum of ninety dollars and forty-five cents."

This is no adjudication of the plaintiff's right of possession, or with reference to the ouster, or as to defendant's alleged withholding of the possession.

The verdict and judgment for five hundred dollars were intended to be either for "rents and profits" or for " damages for withholding." The plaintiff was authorized to unite a claim to recover specific real property with a claim for damages for withholding thereof, and for rents and profits of the same: C. C. P. 427. Whatever may be the difference between the two claims last mentioned, they are to be treated as in nature of an alleged trespass for mesne profits, which can be recovered only after or contemporaneously with a judgment for recovery of the possession of the demanded premises. When united with the ejectment, judgment for such damages can be rendered only when there is also a judgment for recovery of the possession.

Judgment reversed and cause remanded for a new trial.
MCKEE, J., and Ross, J., concurred.

No. 9,057.

EVERSDON V. MAYHEW.

Department One Filed April 29, 1884,

TOWN SITE OF RED BLUFF-STATUTES AFFECTING CERTIFICATES OF TITLE-TRUST ESTATE CONVEYANCE BY TRUSTEE.-On May 1st, 1865, Ann Wasson, then a widow with a child by a former husband, the plaintiff here, entered upon and took possession of certain lots forming part of the town site of Red Bluff. She resided there with her child until her marriage, in 1866, to Wasson; thereafter she, her husband and the plaintiff continued to live and occupy said premises as her property until her death in 1867, when she died intestate, leaving surviv ing her as her heirs at law, her husband and the plaintiff. Said town site had been entered at the office of the register of the land office of the United States, by the county judge of Tehama county, in trust for the several use and benefit of the occupants thereof, under acts of congress providing for the reservation of town sites upon the public lands of the United States. Thereafter said trustee purchased the lands under the provisions of an act of congress applicable to his trust, and on September 29, 1866, a United States patent was issued to the county judge and his successors in office. On March 6th, 1868, the legislature passed an act authorizing the trustee to distribute the town lots held by him in trust, and to issue certificates of title to the inhabitants of said town in accordance with their respective interests. On July 9th, 1868, Wasson, claiming as heir at law of his wife, obtained from the trustee the certificate of title to the premises in dispute, in his own name, which were afterwards conveyed by mesne conveyances to the defendant. Held, that the widow, under the aforesaid acts of congress, as the original and bona fide occupant of said lots, became vested with an equitable title to the same, as her separate property, which she would have had a right to perfect, had she lived, by ob. taining from the trustee, when he came to execute his trust, under the regulations prescribed by the state, a certificate of legal title; upon her death, before such regulations had been prescribed, her interest vested in her husband and the plaintiff as tenants in common, each entitled to an undivided half of the premises; that the legal title obtained by the husband, and his entry thereunder, inured to the benefit of the plaintiff, and was held by him in trust for her; and that the defendant, who took such land with notice of the equitable rights of the plaintiff, as shown by the county records, could acquire no greater rights therein than his grantor had.

DEFENSE OF BONA FIDE PURCHASER.-The defense of a bona fide purchaser is in the na ture of a new case founded on a right as to title to real property operating, if made out, to bar and avoid the plaintiff's equity, which otherwise must prevail. To entitle a party to protection as such a purchaser he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith, and without notice, actual or constructive, prior to and down to the time of its payment. If he had notice, actual or constructive, at any moment before the payment of the money, he is not a bona fide purchaser.

APPEAL from a judgment of the superior court for Tehama county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

Chipman & Garter for the appellant.

Chadbourne and Ellison, for the respondent.

MCKEE, J. On the first day of May, 1865, Ann Wasson, then a widow with a child by a former husband, entered upon and took possession, under color of title, of "lots numbers 1, 2, 3, 4 and 5, in block number 47, as laid out and designated on the official plot of the town site of Red Bluff, now on file in the office of the county recorder of the county of Tehama." Upon these premises she had a small dwelling-house in which she and the child, who is the plaintiff in the action in hand, resided until the year 1866, when the widow inter-married with Henry Wasson; and after her marriage she, with her husband and the plaintiff, continued to live there and occupy said premises as her property, until September, 1867, when she died intestate, seized of said premises, and leaving surviving her as her only heirs-at-law ber said husband and child.

The lots upon which she thus entered and resided, and on which she died, were portions of two tracts of land which constituted the town site of the town of Red Bluff. These tracts had been entered at the office of the register of the land office of the United States in California, by the county judge of Tehama county, in trust for the several use and benefit of the occupants thereof, according to their respective interests under acts of congress which provided for the reservation of town sites upon public lands of the United States: United States land laws, pp 107, 108, 109. After the entry had been made, the trustee purchased the lands under the provisions of an act of congress applicable to his trust; and on September 20, 1866, the government of the United States issued the patent to Warner Earll, the county judge of said county, and to his successors and assigns for said lands, as the town site of said town, in trust for the several use and benefit of the occupants of said lands according to their respective interests.

Congress provided that the execution of this trust, as to the disposal of the lots in said town, and the proceeds of the sales thereof, were to be conducted under such regulations as would be prescribed by the legislative authority of the state (sec. 294, p. 109, supra); and on the 6th of March, 1868, the legislature passed an act which authorized the trustee to distribute the town lots held by him in trust for the citizens of the town of Red Bluff, and to issue certificates of title to the inhabitants of the town in accordance with their respective interest, in the manner prescribed by the act: (Stats. 1867-8, p. 107.)

The acts of congress, under which the foregoing proceedings were had, vested the widow, as the original and bona fide occupant of the town lots in dispute, with an equitable title to the same; and as she acquired the property before her marriage with Wasson, it was, by the laws of the state, her separate property. The protection of her title to this property was one of the objects of the congressional legislation upon the subject of town sites upon the public domain: