Stevenson

The petition to transfer this cause to the supreme court for a' rehearing is denied. The opinion and decision of the district court of appeal is, however, modified, in effect, in the following particulars:

The proceeding was in eminent domain to acquire the right to divert five hundred second-feet of water of the San Joaquin River as against certain described riparian lands of defendant. On the first trial it was held that the use shown was not a public use and a nonsuit was granted, but the judgment was reversed by the supreme court ( 164 Cal. 221 , [ 128 Pac. 924 ]). The court below also allowed *276 litigation of certain rights to the waters of the San Joaquin other than the riparian right sought to be condemned, and this was likewise held by the supreme court to be improper. On the second trial the court submitted to the jury the question whether the use was a public use and also whether the property was necessary to such use. As to the former the jury disagreed, but found for the defendant on the question of necessity. While the trial court struck out the answers held improper by the supreme court, it is claimed by appellant that it allowed one of the defendants to file an amended answer setting up substantially the same matter—that is, alleged riparian' rights of lands other than those described in the complaint, and allowed proof thereof on the trial. The appeal is from the…

The proceeding was in eminent domain to acquire the right to divert five hundred second-feet of water of the San Joaquin River as against certain described riparian lands of defendant. On the first trial it was held that the use shown was not a public use and a nonsuit was granted, but the judgment was reversed by the supreme court ( 164 Cal. 221 , [ 128 P. 924 ]). The court below also allowed *Page 276 litigation of certain rights to the waters of the San Joaquin other than the riparian right sought to be condemned, and this was likewise held by the supreme court to be improper. On the second trial the court submitted to the jury the question whether the use was a public use and also whether the property was necessary to such use. As to the former the jury disagreed, but found for the defendant on the question of necessity. While the trial court struck out the answers held improper by the supreme court, it is claimed by appellant that it allowed one of the defendants to file an amended answer setting up substantially the same matter — that is, alleged riparian rights of lands other than those described in the complaint, and allowed proof thereof on the trial. The appeal is…