Opinion
S.F. No. 6085.
December 20, 1913.
APPEAL from a judgment of the Superior Court of Fresno County. George E. Church, Judge.
This is an appeal by the defendants James Canal Company and Jefferson J. Graves et al., executors of the last will of Jefferson G. James, Deceased, from certain portions of the judgment that is reviewed in the preceding case of Miller and Lux, Incorporated, v. Enterprise Canal and Land Company, (S.F. No. 6061), ante, p. 415, [ 147 P. 567], and the facts and nature of the questions involved are stated in the opinion in that appeal. The two appeals were originally considered together, and on the 20th of December, 1913, an opinion was rendered by the Court in Bank covering both appeals. A rehearing was subsequently granted in the appeal No. 6061, and the publication of that portion of the previous opinion specifically applicable to the present appeal has been deferred until the determination of the appeal No. 6061. The further facts are stated in the opinion of the court.
N.C. Coldwell, and W.C. Graves, for Appellants.
Frank H. Short, and Edward F. Treadwell, for Respondents.
The foregoing statement materially shortens the consideration of this appeal. The nature of it has been outlined. It is a request upon the part of the court to overthrow the decisions previously considered and the decisions of Miller Lux v. Madera C. I. Co., 155 Cal. 59 [ 99 P. 502], and Miller v. Bay Cities Water Co., 157 Cal. 256, [ 107 P. 115], and to decree that notwithstanding the injury to the freehold of the respondents worked by the diversion, the appellants may still divert waters from the San Joaquin River at times when more is carried than is actually put to economic use. This proposition does not present a question of first impression where the action of this court would be free. The proposition has been decided repeatedly against appellants' contention, and for the reasons given in the foregoing consideration those decisions must be adhered to and this appeal denied.
The portion of the judgment appealed from is affirmed.
Shaw, J., Lorigan, J., Angellotti, J., Sloss, J., and Melvin, J., concurred.