Crum

This is an original motion which was made in this court to recall the remittitur and assess the costs to the appellant, on the theory that the action is in the nature of an inverse condemnation suit, and that the owners of the property which is involved therein, are entitled to costs under the provisions of article I, section 14, of the Constitution of California, independently of the outcome of the litigation.

This suit was instituted by the plaintiffs, as the owners of land riparian to Fall River, to enjoin the defendant from diverting the water of that stream, and to secure damages for the appropriation thereof. The injunction was issued, and the plaintiffs secured damages in the sum of $20,000 for the taking of the water and the damaging of their property by the diverting of the stream. On appeal to this court, the judgment was reversed. (Crum v. Mt. Shasta Power Corp., 117 Cal. App. 586 [ 4 Pac. (2d) 564 ].) Following the opinion of this court, a remittitur was issued directing the levying of- costs against the respondents pursuant to rule XXIII of the Supreme Court. In due time the motion to recall and modify this remittitur was properly made. (San Joaquin etc. Co. v.…