Dennis

This is a motion to dismiss plaintiff’s appeal from that part of the judgment herein which fixes defendants’ damages for the taking of their property for a public use.

The defendants are the owners of certain lands riparian to Pitt River. Fall River empties into Pitt River above these lands. Having determined to divert all of the water naturally flowing in Fall River to its hydro-electric power plant and thence convey the water to Pitt River at a point below defendant’s lands, this proceeding was commenced for the purpose of condemning defendants’ riparian rights in so far as the waters to be diverted from Fall River are material thereto. September 15, 1922, the jury returned a verdict fixing the amount of defendants’ damages on account of the proposed taking. September 22, 1922, judgment was entered on the verdict. On the same day the plaintiff served and filed its notice of intention to move for a new trial. September 29, 1922,. the plaintiff paid into court for the defendants the amount of the judgment and costs and, in connection therewith, filed a written statement as follows:

Prom affidavits introduced by defendants in opposition to plaintiff’s motion for a new trial, it…