O'Brien

This is an appeal on the part of the defendants from an order granting a motion for a new trial after a verdict and judgment in their favor. The verdict of the jury was rendered upon special issues, and its findings thereon were adopted by the court as the basis of its judgment.

The action was instituted by the plaintiff, a corporation owning lands adjoining the lands of the defendants, to enjoin the latter from taking and using the whole of the water from a creek known as Lenox Creek, which rose upon and flowed through their lands, emptying into Carriger Creek and thence over and across the lands of the plaintiff. The evidence showed that the defendants had appropriated all of the water of Lenox Creek for their own uses, and in addition to using the same for irrigation, household, and domestic purposes, ran the residue of its waters after these uses had been satisfied into a pool or lake near their residence. The issues in the case arose over the amount of water .which the defendants were entitled to divert into this pool or lake. The findings of the jury and the judgment of the court gave the defendants all of these waters, but upon motion for a new trial the court granted the…