The opinion of the court was delivered by
Valentine, J.:
*5871. Overflowing lands. Uniting different causes of action. *586This was an action brought by Lewis F. Davis against Andrew Akin and others for damming the Verdigris river on their own land so as to cause the water to rise in the channel where said river flows through the plaintiff’s *587land. The facts stated in the plaintiff’s petition constitute two causes of action, and are stated in two separate counts. The first count states facts sufficient to constitute a cause of action for the injuries caused by said dam. The second count states facts sufficient to constitute a cause of action for a perpetual injunction to restrain the defendants from further maintaining and continuing said dam. Both causes of action are founded upon the tortious acts of the defendants, the creating of a private nuisance. The first is a legal cause of action, and at common law would have been denominated an action on the ease for damages, an action for a tort. (Angelí on Watercourses, § 395, et seq.) The second is an equitable cause of action brought for the purpose of enjoining the nuisance; for under our code practice all actions brought for the purpose of enjoining or abating private nuisances are in their nature equitable.actions. (People v. Moore, 29 Cal., 427; Angell on Watercourses, 6 ed., § 456a, and cases there cited; Blood v. Light, 31 Cal., 115.) It is claimed that there is a misjoinder of causes of action in this case. We are of a different opinion however. Under our statutes legal and equitable causes of action may be united in the same petition, where they all arise out of the same transaction or transactions connected with the same subject of action, or “injuries, with or without force, to person and property, or either.” (Code, § 83; Harris v. Avery, 5 Kas., 151.) The two causes of action set forth in this case have arisen out of the same transactions, and are connected with the same subject of action; and the two kinds of relief asked are not inconsistent, nor cumulative, nor double — one being for compensation for past injuries, and the other for a prevention of future injuries; and therefore the two causes of action may be joined. The action for the injunction is an equitable cause of action, as all will admit. The action for damages is what would have been denominated at common law an action on the case; and Mr. Chitty says, “An action on the case is founded upon the mere justice and *588conscience of the plaintiff's case, and in the nature of a bill of equity, and in effect is so." (1 Chitty Pl., 491.)
2. Pleading. Matters of defense need not to be stated in petition. 3. Sufficiency of petition. Practice. It is also claimed that said petition does not state facts sufficient to constitute a cause of action, because it does not state that the defendants did not obtain the right to flood the plaintiff’s land by virtue of proceedings under tib-e mill-dam. act. (Gen. Stat., 576, ch. 66.) It is not necessary that any such statement should be inserted in the petition. If it is true that the defendants have obtained any such right by virtue of proceedings under the mill-dam act, it is for them to plead it and prove it. It is wholly immaterial now whether special damages were .alleged in said petition or not, as-no special damages, but only nominal damages, to-wit, five cents, were recovered by the plaintiff in this action. Hence it is also wholly immaterial now whether the court below erred or not in overruling a motion to require the‘plaintiff to make certain allegations in his petition with respect to special damages more definite and certain.
4. Facts stated determine nature of action. The plaintiff set forth in his petition a certain written instrument signed by all the parties to this suit. This instrument gave the defendants the right to build a dam and to raise the water on a portion of the plaintiff’s r 1 land. But it did not give the defendants the right to build the dam as high as it was built, nor to raise the water in the channel of said river at the place where the plaintiff now complains that the defendants raised it. Whether this instrument created an easement, or a mere license, it is not now necessary to determine. All that it is necessary now to say is, that the defendants paid one dollar for whatever right'they obtained, bqt they did not thereby acquire a right to do anything further, and they did not thereby agree to refrain from doing anything. The pleading of this written instrument on the part of the plaintiff is merely an admission by him of certain rights in the defendants; for by such written instrument the plaintiff deprived himself from recovering for damages for flooding the lower *589portion of his land for which he might otherwise have recovered; and has deprived himself from obtaining an injunction to restrain the maintenance of that portion of the dam which caused the water to flood the lower portion of his land, as he could have done except for said written instrument. The written instrument therefore merely confers rights upon the defendants, and not upon the plaintiff The plaintiff however abides by the instrument, and does not seek to recover for anything except what he has not granted to the defendants. The plaintiff is willing that the defendants shall maintain the dam at the height that he agreed that they might, and that they may flood his land as he agreed they should; and it is only for the excess in the height of the dam, and excess in flooding his land, above where he agreed-that they might flood it, that he now .complains, or seeks relief; and for this only the court below rendered judgment. The acts of the defendants in flooding the plaintiff’s land above and beyond where they had a right to flood it, that is, in flooding land not included in said written instrument, were unquestionably tortious. These acts were of the same nature as though no such written instrument had ever been made. The plaintiff did not obtain the right to prevent the flooding of these lands by virtue of said written instrument, but he possessed such right prior to the execution of such, written instrument, and independent thereof. Hence this action can in no sense be termed an action on contract, but it is an action founded on the tortious acts of the defendants in flooding land concerning which no contract has ever been made between the parties.
5. Error will be disregarded unless injurious. *5906. Petition; what to be stated; immaterial averments. *589This action was commenced and prosecuted upon the erroneous theory that it was founded upon contract, and not upon the tortious acts of the defendants. And because this erroneous theory the court below committed several errors. But after a careful consideration of the whole case we are satisfied that such errors did not affect the substantial rights of the defendants, and therefore that such errors will not require a reversal of the judgment of the court below. Although the plaintiff sup*590posed his action was founded on contract, yet he alleged in his petition every fact necessary to render it a good petition for the torts of the defendants, and every fact necessary to obtain the relief he asked for, or that he received. The plaintiff, by commencing and prosecuting his case upon an erroneous theory, was not relieved from introducing any evidence that he would otherwise have been required to introduce; nor were the defendants required to introduce any more or different evidence than they would have been required to introduce if the case had been tried on the correct theory; and the defendants could not have been materially embarrassed in the introduction of their evidence, or in any other manner, on account of said mistaken and erroneous theory. The trial must have proceeded, notwithstanding said erroneous theory, in all respects substantially as it would have proceeded if it had been prosecuted upon the correct theory. Under our code a plaintiff is not required to state whether his cause of action is founded upon con- ^ r tract, or on tort; and generally, if he should make a statement, and be mistaken, the statement would be immaterial. All that a plaintiff is now required to do is to “state the facts constituting” “his cause of action, in ordinary and concise language, and without repetition.” (Code, § 87.) These facts may sometimes constitute both a cause of action on contract, and a cause of action on tort, or two or more of either; and then, if the reliefs for the two or more causes of action are inconsistent, the plaintiff would be required to elect which of the same he would take, and in no case could the plaintiff have a double relief for substantially the same thing. But if the facts of the two or more causes of action are the same, and if the reliefs are the same, and if the plaintiff does not ask for double relief, but only for the single relief which either cause of action would give him, then there can be no good reason given why the plaintiff should be required to elect as to which relief he would take, or whether he would call his action an action on contract or for tort.
*5917. Whole case, legal and equitable, submitted to jury. It is claimed “that the district court erred in submitting both the causes of action set forth in the petition of the said Bavis to a jury for trial,” the first being a legal and the other an equitable cause of action. We « x . perceive no error however m this. Either party had the right to have the first cause of action submitted to a jury. (Code, § 266.) And with reference to the second cause of action, the court in its discretion had the power to send any or all the issues therein contained to a jury, or to try them itself. (Code, § 267.) These issues, as mentioned in said § 267 of the code, are such as are made up by the pleadings of the parties, and no others are there contemplated. All feigned issues are abolished by our code, but the court may in some cases in its discretion direct the jury to find upon particular questions of fact not put in issue by the pleadings. (Civil code, § 12.) And we suppose the court may even in equity cases in its discretion follow § 286 of the code. (Laws of 1870, p. 173, ch. 87, §7.) The court seems to have followed said § 286 in the present case, for the jury found a general verdict for the plaintiff upon all the issues, and also found specially upon certain particular questions of fact. When all the issues in an equitable cause of action are submitted to a jury, a general verdict for the plaintiff is sufficient. (Blood v. Light, 31 Cal., 115.) And this is true where the jury also find upon particular questions of fact, unless the special findings should be inconsistent with the general verdict. (Id.) Now as it was proper for the court to submit to the jury either of said causes of action separately, and in the manner that each was submitted, we can see no valid reason why both of them should not have been submitted together, and in the manner they were submitted; and especially so as both causes of action arose out of the same facts substantially. But it does not anywhere appear from the record that the defendants made any objection to the court submitting both causes of action as it did to the jury, and it is rather late now to raise the objection.
*5928. Mill-dam act; how rights thereunder to be acquired. *591The defendants set up as a defense to the plaintiff’s action *592that they had a right to build said dam, and to flood the plaintiff’s land by virtue of certain condemnation proceed-under mill-dam act. (Gen. Stat., 576, 66.) On the trial the defendants offered to }n£rc)(juce the. records of these proceedings to pi'ove said defense, but the court excluded them. And we think they were rightfully excluded, as the proceeding were so irregular that no rights could be founded upon them. Under the statutes the first thing to be done regarding such proceedings is to present the proper petition to the judge of the district court; (Gen. Stat., 577, §2.) The next is the appointment of the commissioners, to assess the damages; (§ 3.) Then the commissioners are to be qualified by taking and subscribing the proper oath; (§ 4.) Then the commissioners, at the request of the petitioners, give the proper notice to the persons named in the petition whose lands it is supposed will be affected by the building of the dam; (§ 5.) This notice must be given at least thirty days before the meeting of the commissioners for the assessment of damages; (§ 6.) The commissioners then meet at the time and place appointed/and make their examination and assessment of damages; (§ 7.) The commissioners then make a report of their proceedings, and return their certificate of appointment and all affidavits and other papers, which must be done within thirty days after completing their examination; (§ 8;) and the damages assessed must then be paid, or tendered, or deposited with the clerk of the district court; (§ 9.) The proceedings however were in fact as follows: The' persons who were afterward appointed commissioners gave the said required notice to the plaintiff and others, May 16th 1871; afterward they took and subscribed an oath, May 17th; afterward they were appointed commissioners, June 11th, but whether any written petition -was ever presented to the judge of the district court therefor is not shown; afterward they met at the time and place appointed, June 16th, and assessed the damages of the plaintiff at $500; afterward they made a report of their proceedings July 28th, but not within thirty *593days after they completed their examination and made their assessment of damages. "Whether they returned the oath which they took and. subscribed, (it being one of the papers required by § 8 aforesaid to be returned,) and what was the form of the oath, is not shown. And no part of the damages assessed has ever been paid, or tendered, Or deposited with the clerk of the district court.
9. Construction of contracts; error to submit question jury. The court below of course erred in charging the jury so far as it treated this action as one founded upon contract; but as we have before said, such error was immaterial. The court also erred in submitting the t . written instrument set forth in the petition', to the jury, to be by them construed; but this error was also immaterial. The jury did not construe it; and the plaintiff in drawing his petition, and the court in rendering judgment, gave every right to the defendants which they had any right to claim by virtue of said written instrument, and did not give anything to the plaintiff except what he had a right to claim either with or without said written instrument.
The general verdict and the special finding were not inconsistent, and either was sufficient to sustain the judgment. The judgment is affirmed.
All the Justices concurring.