Stevinson

The history of this case is given by appellant in its opening brief as follows: "Plaintiff, a public service canal company, having been enjoined from diverting more than a certain quantity of water in a suit brought by the owner of 2407.27 acres of swamp and overflow lands, riparian to the San Joaquin River, brought this proceeding in 1909 to acquire by condemnation the right to divert an additional 500 second-feet of water as against that land. On the first trial plaintiff *Page 769 was nonsuited, and on appeal the judgment of nonsuit was reversed ( San Joaquin Kings River Canal Irr. Co. v. Stevinson, 164 Cal. 221 [ 128 P. 924 ]). On the second trial the court submitted to the jury the questions of public use and public necessity and the jury found against the plaintiff on the issue of public necessity, and, on appeal, the judgment was reversed on the ground that those issues should have been passed upon by the court, and not the jury, and for other reasons ( San Joaquin Kings River Canal Irr. Co. v. Stevinson, 26 Cal.App. 274 [ 147 P. 254 , 258]). On the third trial the trial court decided the issues of public use and public necessity in favor of plaintiff (Trans., pp. 21-35),…

In denying the respondent's petition for a transfer to this court we wish to note that no point is made on this application concerning the rejection of appellant's evidence as to the extent of respondent's riparian rights, and that we do not for that reason consider the ruling of the district court of appeal in that regard. The respondent is apparently satisfied with the ruling of the district court of appeal, which will, of course, be the law of this case. The petition is denied. *Page 775