Crum

This cause is presented to this court upon rehearing.

The appeal is from a judgment which was entered upon the rendering of a verdict for $20,000 as damages for the diversion of the water of Fall River from land which was deemed to be riparian thereto. The defendant, which is a hydroelectric power company, was also enjoined from using the water of that river until the judgment for damages is satisfied. The respondents, husband and wife, for convenience will be referred to as plaintiff.

Fall River empties into Pit River in the northeastern portion of Shasta County. The plaintiff owns 116 acres of farm land bordering on the south bank of Pit River on Pitville Pool, a distance of five miles above the mouth of Fall River. This pool is a mere enlargement of the bed of Pit River. Its waters are impounded during the summer months by a lava rock reef which forms a dam across Pit River below the mouth of Fall River. The plaintiff’s land does not border on Fall River, but, upon the contrary, is located a distance of five miles from the nearest point to the last-mentioned stream. The plaintiff’s land is, however, claimed to be riparian to Fall River since this stream contributes a…