Albaugh

This is a rehearing in an appeal from a judgment for damages in the sum of $65,000 for the diversion of the water of Fall River, and from the issuing of an injunction prohibiting the defendant from using any of the water of that stream until the judgment is satisfied. This is a companion case with that of Merton Crum et al. v. Mt. Shasta Power Corp., (Civil No. 4264) ante, p. 586 [4 Pac. (2d) 564], in which an opinion of this court was this day filed. These two cases were tried upon substantially the same evidence. The same issues are' involved in both actions. Upon the authority of the Merton Crum case, it becomes necessary to also reverse the judgment in this case.

The plaintiff in the present action owns 400 acres of farm land situated on the north bank of Pit River, on Pitville Pool, opposite the property which is owned by Merton Crum. Upon the authority of the case of Turner v. James Canal Co., 155 Cal. 82 [ 132 Am. St. Rep. 59 , 17 Ann. Cas. 823, 22 L. R. A. (N. S.) 401, 99 Pac. 520 ], it may be assumed the plaintiff’s land is technically riparian to Fall River during the low-water period in the summer-time. On the theory that the water of Fall River comes in contact with…