#### Fisher *v.*Bower.

*Action for damages and injunction*— Public *ditch obstructed*— And *water diverted*— Action *not appealable*— Court *procedure.*

An action to recover damages for so filling up and obstructing a public ditch and making a new channel, as to cause the water falling on lands of defendant and others to be diverted from the public ditch and overflow the lands of the plaintiff, thereby annually destroying his crops and pasturage, is not appealable, although the prayer for damages is followed by a prayer for injunction to prevent repeating or continuing the cause of the injuries.

(No. 10740

Decided January 26, 1909.)

Error to the Circuit Court of Hardin county.

On the 15th day of August, 1902, the plaintiff in error brought suit against defendant in error, in the Court of Common Pleas of Hardin county, alleging in substance, that plaintiff and defendant are owners of farms in said county — one of said farms consisting of about three hundred acres belonging to the plaintiff, and the other consisting of ■ about two hundred and forty acres belonging to the defendant Bower. These farms are con*249tiguous to the extent that the northern portion of plaintiff’s lands bounds defendant’s lands on the east; and the northern and eastern portion of defendant’s lands bounds plaintiffs said lands on the north. The plaintiff’s farm was adapted to and used for agricultural purposes such as raising grain and pasture for stock of various classes common to the business of farming in that community.

It is averred that the natural drainage of the Bower farm is through a natural watercourse and township ditch, flowing in a north-easterly direction through his lands. Upon the lands of defendant and between said township ditch and lands of the plaintiff, there is a low ridge or elevation of land, and west of said elevation the waters falling upon the lands of Bower naturally flow into said township ditch. It is alleged that during or prior to the year 1897, the defendant Bower closed up said township ditch with logs and earth and other substances, and has thereby prevented said waters falling on defendant’s lands, and the other water flowing into the ditch from above his lands, from flowing away to the northeast through said ditch; and that Bower had cut a ditch running east from said township ditch through said elevation, nearly to the eastern boundary of his land, and has given such grade to the new ditch that the waters which theretofore naturally flowed into and through said township ditch and away to the northeast, now flow east through the ditch so cut by the defendant, and pour out of said ditch and run thence upon and over the lands of plaintiff, which are not naturally tributary to said waters so thrown upon them.

*250The plaintiff charges that resulting from these wrongful acts of Bower, his lands have been overflowed and damaged and that he has been in large measure unable to raise crops on his lands, and that the yield of crops has been largely diminished. It is further alleged that the acts of defendant at times caused the overflow of twenty-five acres of' plaintiff’s lands, making them unsuitable for agricultural purposes, and that for the six years preceding the bringing of the action plaintiff had been prevented by defendant from using said twenty-five acres for any useful purpose. The plaintiff says he has been damaged by the conduct of defendant in causing and continuing plaintiff’s said lands tó be overflowed in the sum of $600 for which plaintiff asked' judgment. The further prayer of the petition is, “that defendant, may be forever enjoined from allowing said waters to flow upon the lands of plaintiff; and that defendant be forever enjoined from gathering" and diverting- into said east and west ditch said waters falling upon defendant’s said lands * * *, and from causing the same to flow through to the eastern extremity of said ditch, and thence discharging them upon said lands of plaintiff, and for such other and further relief as is proper in equity.”

The defendant answered that he admitted his ownership of the lands ascribed to him in the petition, but denied all the other allegations therein.

On the issues the case was tried to a jury at the March term for 1903, but in August of that year.

The jury found the plaintiff damaged in the sum of $180. The court overruled a motion for new trial and rendered judgment on the verdict. The *251record shows that after the verdict and judgment the cause came on to be further heard, upon the motion of plaintiff for an injunction as prayed for in the petition, and the court found from the pleadings and the evidence that the equities of the case were with the plaintiff, and that defendant had diverted the water as plaintiff had alleged, and granted a perpetual injunction against the defendant as prayed for in the petition.

The defendant gave' notice of appeal- and the court fixed the amount of an appeal bond, and bond for appeal was executed and with transcript and original papers the same was filed in the circuit court.

The plaintiff moved to dismiss the appeal on the ground that the case was not appealable. This motion the circuit court overruled and exception was taken. This was done at February term, 1904. At the February term for 1907, the case was heard on the pleadings and evidence, whereupon that court held that plaintiff was not entitled to either damages or relief by injunction, it being the opinion of the court that plaintiff had an adequate remedy at law by means of proceedings before the county commissioners for the establishment of ditches, etc. Being of such opinion, the court dismissed the plaintiff’s petition without prejudice, and divided the costs.

Error is prosecuted here to reverse the judgment of the circuit court.

*Mr. Art emus B. Johnson*and *Mr. George E.*Crane, for plaintiff in error.

If a legal and an equitable cause or action be united in the same petition, the parties have an *252absolute right to demand a trial by jury of the issues of fact in the legal cause of action, which cannot be taken away or abridged by the legislature. 1 Kinkead Code Pleading, 245; *Rowland*v. *Entrekin, 27*Ohio St., 47; *Ladd*v. *James,*10 Ohio St., 438.

Where the facts constituting a single cause of action call for both legal and equitable relief, the method of trial in such case is determined by the nature of the action. If the primary or paramount relief be equitable, and the legal relief only incidental, that is, if it is necessary to determine whether plaintiff is entitled to the equitable before the legal relief can be granted, then it is an equitable action, and triable to the court without a jury. And if the primary or paramount relief is legal and the equitable relief only incidental, it is a jury case. 1 Kinkead Code Pleading, 246; *Brundridge*v. *Goodlove,*30 Ohio St., 374; *Converse*v. *Hawkins,*31 Ohio St., 209.

In cases where a legal and equitable cause of action are joined, the parties had a right to separate trials of each cause of action, the legal cause to a jury, and the equitable cause to a court, unless one of the causes be incidental or so related, dependent or connected with the other, as that one cause may be paramount to the other, so that the right to appeal or to go up on error would be governed by the paramount relief. 2 Kinkead Code Pleading, 1296.

In the cáse at bar the plaintiff was clearly entitled to a money judgment for damages, irrespective of any equity relief prayed for or granted, and each party had a right to a trial by jury. *Ladd*v. *James,*10 Ohio St., 437.

*253A claim for judgment on a note and for a sale on a mortgage are distinct claims. When united in one action, “as to any issue of fact affecting the claim to a personal judgment, there is a right to demand a trial by jury.” *Brundridge*v. *Goodlove,*30 Ohio St., 374.

An action to recover money damages and for injunction for the diversion of a stream, is not appealable. *Bugh*v. *Sturgeon,*41 Ohio St., 402.

The right of appeal is determined by nature of the action, and not by the form of the judgment rendered. *Hull*v. *Bell Bros. & Co.,*54 Ohio St., 228.

In *Raymond*v. *Railway Co.,*57 Ohio St., 271, in which case plaintiff sued for possession of land, and to quiet title, and for an injunction, the court held that in an action for possession, either party was entitled to a jury, and therefore the action was not appealable.

We think that all these Ohio cases sustain our contention, that the case at bar involved a “claim for the recovery of money only;” that, the legal right having been first determined by a jury, the court should exercise its equity powers to prevent a multiplicity of suits; and that the equitable remedy is only incidental to the legal one.

There is no better settled principle of equity jurisprudence than that the remedy of injunction does not lie in favor of one who has a complete and adequate remedy at law. *Bank*v. *Debolt,*1 Ohio St., 591.

But, in the case at bar, the suggested remedy is neither complete nor adeauate. If plaintiff were to petition the countv commissioners to locate a ditch to take care of the water in question, he *254would- hardly find this remedy to be clear, complete and “as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” *Culver*v. *Rodgers,*33 Ohio St., 537; 16 Cyc., 41. And he would find, in this ditch proceeding no remedy whatever, adequate or otherwise, for his damage in the past from defendant’s acts of trespass.

In *Railway*v. *City of Greenville,*69 Ohio St., 487, this court held that a hearing before a city council was not such an adequate remedy at law. Is .the hearing on a ditch petition before commissioners any more so?

Even if a ditch proceeding affords an adequate remedy at law, the court should simply have refused equitable relief, and should not have “dismissed the petition.”

Plaintiff was still entitled to his action for damages. He cannot look to the county commissioners to assess damages on Bower for his past trespasses. At best, they can only provide for the future.

If the appeal took up to the circuit court the judgment for damages, then the circuit court was wrong in dismissing the petition on the ground that plaintiff had a remedy at law.

The right to an injunction failing, the only cause of action left to plaintiff was a legal one. That cause of action was in no way impaired by the finding of the circuit court; and it was error to dismiss the petition as to that legal cause of action. *City of Wellston*v. *Morgan,*59 Ohio St., 147.

*255In Ohio actions for damages and for injunctions have frequently been maintained and with the approval of this court, against those who wrongfully diverted water upon their neighbors. No court has heretofore held or ever suggested that a county ditch proceeding was a remedy, and an exclusive one, for this wrong. *Butler*v. *Peck,*16 Ohio St., 334; *Crawford*v. *Rambo,*44 Ohio St., 279; *Railway Co.*v. *Franz,*43 Ohio St., 623.

*Mr. Frank C. Daugherty*and *Mr. William P. Henderson,*for defendant in error.

The right of appeal is determined by the -nature of the action, and not by the form of the judgment rendered. *Hull*v. *Bell Bros. & Co.,*54 Ohio St., 228.

Whether a case is one in equity or at law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings. *Raymond*v. *Railway Co.,*57 Ohio St., 271.

The cause of action stated in the petition is a single and .simple one, to-wit: that at or prior to the year 1897, defendant cut a ditch through a natural ridge or elevation of ground on his own land, and thereby diverted and cast upon plaintiff's land, large quantities of surface water, to which plaintiff's land is not naturally tributary.

From this single cause of action arise two remedial rights, one legal, *i. e.,*compensation for the damage wrought; the other equitable, *i. e.,*a perpetual injunction against so diverting said surface water. Pomeroy’s Code Remedies, Secs. 453-4-5, 460.

*256It is to be noted that both remedies depend upon the same evidence and arise from the same alleged wrongful act; if the evidence fails to sustain the claim for an injunction, it would equally fail to sustain the demand for damages, and *vice versa.*

No one doubts but that plaintiff might so have framed his petition, as to have presented strictly a damage suit at law; he did not do so, precisely for the reason that such a remedy would not have been an adequate one; and 'so he came into an equitable forum, seeking a complete remedy. Presumably, what he wanted was the use of his farm, undisturbed by his neighbor’s surface water being diverted and cast upon it; inasmuch as he had to go into court anyhow, he also wanted an account taken of the damages he had already suffered from the same cause and compensation awarded therefor. Pie could obtain both of these results from the equity jurisdiction of the court, in a single action; from the law side, he could obtain only an equally uncertain and varying estimate of damages with his land still subject to the same inundations, and with the prospect only of an equally uncertain and varying estimate of damages from year to year in the future.

The claims herein advanced are confirmed by the cases of *Converse*v. *Hawkins,*31 Ohio St., 209, and *Railway Co.*v. *Horner,*53 Ohio St., 648, also found in 33 W. L. B., 332; we claim these two judgments to be decisive of this branch of the case at bar.

Price, J.

It has been a long time' since the plaintiff in error began his quest for justice in the court of common pleas. On August 15, 1902, *257he filed his petition against Bower asking judgment for damages for causing a part of plaintiff’s farm to be annually overflowed and crops destroyed during the six years preceding. As a part of his case he also asked the court to enjoin Bower from continuing the wrong. Issue was joined by a general denial — except that plaintiff owned his land — and trial was had to a jury in May, 1903. The jury found for the plaintiff and assessed his damages at $180, for which judgment was rendered, as well as for the costs of the action. Thereupon and on further hearing to the court, the defendant was enjoined from further diverting the water and throwing it upon the lands of the plaintiff. The defendant appealed to the circuit court and filed the bond for appeal August 1, 1903, and the transcript and other papers on August 8 of the same year. On September 28, 1903, a motion to dismiss the appeal was filed, containing as its ground that the case was not appealable. This motion was heard and denied by the circuit court at its February term, 1904. The case was continued by order of the court at each subsequent term until February 1907, —a period of three years — and then the plaintiff was turned out of court with some advice but without any relief whatever; a rather remarkable end to the long slumber of the case on the trial docket.

But before we further consider the latter end of the case, it is important that we notice a judicial event which transpired quite early in the proceedings of the circuit court. One of the errors assigned in this court is, that the “circuit court erred *258in overruling the motion of the plaintiff to dismiss the appeal of said defendant to said circuit court * * As already stated, the ground of the motion is that the case is not appealable. If' this motion had been sustained and the appeal dismissed, the responsibility of the circuit court would have there ended.

Our statement of this case shows that the action in the court of common pleas was to recover damages caused by the wrongful acts of the defendant. For six )^ears before suit was filed, it is alleged, the defendant trespassed upon the lands of plaintiff by interfering with certain physical conditions on his own and plaintiff’s lands so as to overflow the latter. The acts charged were trespasses in the broad meaning of the term, and the primary redress sought was damages, and as an incident to his right of recovery, if the same should be established, he asked that further trespass and injury be enjoined. If the plaintiff on this petition had asked for injunction as his sole remedy,' he would have been told that none could be granted because he had an adequate remedy at law, for it is a fundamental doctrine, underlying the entire jurisdiction of equity by injunction against the commission of trespass, that where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of injunction. The remedy at law is a bar to injunction. Fligh on Injunctions, Section 699.

The issue made up in the pleadings was an issue of fact for trial by jury, and with consent on all hands, the case was tried to a jury and its verdict *259for so much money was returned. Section 5130, Revised Statutes, provides that “issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived or a reference ordered as hereinafter provided.”

In this case, the allegations on which plaintiff prayed for damages are the allegations on which an ultimate injunction was asked. Therefore there were not two causes of action each based on separateeand distinct facts, but one cause of action for damages, and if that should be sustained, then as ancillary relief, an injunction to prevent further injury. It was proper practice in actions founded on trespass such as disclosed in the petition, to first establish the legal rights of the plaintiff, and when that has been done, in order to avoid a multiplicity of suits, to have the repeating of the trespasses enjoined; and this may be done in the same action, upon sufficient averments for that purpose. If the jury had found for the defendant on the plaintiff’s demand for damages, an injunction would not have been granted, because the plaintiff had failed to make a case on the averments of his petition. The prayer for the injunction is predicated on the truth of the averments on which the recovery of damages is sought, and was granted when and only when the right of recovery had been determined by the jury.

Another view point is found in Section 5226, Revised Statutes, as to when an appeal may be taken to the circuit court. It reads, in part, “an *260appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common' pleas court, and of which it had original jurisdiction, *if the right to demand a jury therein did not exist,** * It will require a high degree of courage to contend, as in brief of defendant in error, that under the issues joined in this case, the parties were not entitled to a jury. If the right to demand a jury existed the cause was not appealable. The foregoing provisions of our statutes have received construction in numerous cases, including *Dunn & Witt*v. *Kanmacher & Stark et al.,*26 Ohio St., 497; *Chapman*v. *Lee,*45 Ohio St., 356; *Gunsaullus, Admr.,*v. *Pettit, Admr.,*46 Ohio St., 27; *Raymond*v. *Railway Co.,*57 Ohio St., 271. The latter case contains an elaborate discussion of the subject, and the fourth paragraph of the syllabus is directly in point here.

What have we in this record? The tail of the case, to-wit: the supplication for an injunction at the close of the plaintiff’s allegations of wrong— taking up by appeal the entire lawsuit; — the jury issues — the verdict of the jury and the judgment thereon, as an accompaniment of the order of injunction; for it is contended that such did actually happen by reason of the appeal, so that the verdict and judgment thereon were suspended. We are not able to concur in such views, but, on the contrary, we think the action is one for damages as the primary relief, and the relief by injunction is ancillary thereto. We therefore hold that the circuit court should have sustained the *261motion to dismiss the appeal and that its refusal so to do is error.

Having refused to dismiss the appeal, in course of time the court took up the case for hearing and consideration, and the record shows the following disposition of the controversy, under date of February 21, 1907. “This day this cause came on to be heard and was submitted to the court upon the pleadings and the evidence and was argued by counsel, upon consideration whereof the court find for said defendant, and that said plaintiff is not entitled to the relief prayed for in his petition, either in the form of an injunction or in the form of damages, it being the opinion and finding of the court from the evidence that said plaintiff had and has an adequate remedy at law by means of proceedings before the county commissioners of said county for establishment of ditches, drains and watercourses. It is therefore ordered and adjudged and decreed that the petition of the said plaintiff be and the same hereby is dismissed without prejudice, however, to his right to pursue his said remedy at law, and without being concluded in pursuing said remedy by any finding herein made.” The court then ordered each party to pay his own costs.

This disposition of the case is certainly unique. Notwithstanding- the fact that a jury had found that plaintiff had been damaged as he had alleged, the court, believing that it had acquired jurisdiction of that subject by apneal, decided that plaintiff was not entitled to relief “in form of damages,” nor to relief in “the form of an injunction.” If the court had jurisdiction to hear and determine *262.the claim of damages, and found that plaintiff yras not entitled to recover on the allegations of his petition, it would follow that the relief by injunction would be denied, because the ground of his action had failed. The reason assigned by the court for its findings is’ that plaintiff has “an adequate remedy at law, by means of proceedings before the county commissioners of said county for the establishment of ditches, drains and watercourses.”

The plaintiff had resorted to his remedy at law and had pursued it to verdict and judgment, and it is a harsh saying under such circumstances, that his adequate remedy at law is to go before the county commissioners and implore them to establish a ditch or ditches to drain his lands. It is indicated in the record that plaintiff may have had tribulations of that kind before, for in his petition he accuses the defendant of filling up or obstructing a township ditch as a part of the scheme to overflow plaintiff’s lands. The court entertained the case on appeal and then commended the plaintiff to the tender mercies of the county commissioners: This was the unkindest cut of all. He asked for a fish, but they g-ave *him*— water.

The judgment of the circuit court is reversed and set aside; the motion to dismiss the appeal is sustained and the appeal dismissed, and the case is remanded to the court of common pleas for such proceedings as are authorized by the law and this opinion.

*Judgment reversed.*

Crew, C. J., Summers, Spear, Davis and Spiauck, JJ., concur.