Gale & Elliott v. Tuolumne Water Co.

Citations

• 14 Cal. 25
• 1859 Cal. LEXIS 229

Syllabus

<p>The union, in one count of a complaint of an allegation, that defendants “ have wrongfully built dams and flumes across said Mormon Creek - - - - so as to turn the water of said creek out of its natural channel,” etc. and thus divert it from plaintiff, with an allegation that defendants “have constructed gates, etc. in their said dams and flumes, which they - - - - hoist for the purpose of clearing out said dams and flumes of slum, stone, and gravel,” the accumulation of which renders the water useless to plaintiff, does not make the complaint demurrable, on the ground that it unites several distinct causes of action in one count.</p> <p>The gravamen of the action is the diversion of the water, and the fact that the diversion is accomplished by different means, is not important enough to require several counts.</p> <p>Demurrer sustained, and plaintiff amends by making two counts instead of one. He cannot, after trial, complain of error in sustaining the demurrer.</p> <p>To test the ruling on the demurrer he should have gone to trial on the pleadings, where the judgment on demurrer left them.</p> <p>The amendment of the complaint, putting the substantial matters contained therein into two counts, not being answered by defendants, and no default taken therefor, the plaintiff cannot go to trial without objecting to the answer to the original complaint, and, after verdict against him, object to the want of an answer to the amended complaint.</p>