Water-Bights—Biparian Ownership—Appropriation—Temporary Injunction—Ultimate Bights Not Adjudicated—Discretion.—An order granting a temporary injunction in an action by riparian owners to enjoin an upper appropriator from interfering with their riparian rights, and limiting the defendant pendente lite to the exercise of certain reserved rights, is a matter resting largely in the discretion of the court. Such order does not adjudicate the ultimate rights of the parties in controversy, but merely determines that the court, in balancing the respective equities of the parties, concludes that defendant should be restrained pending suit from diverting the waters beyond such reserved rights.

Id.—Review of Temporary Injunction upon Appeal—Affirmance.— In reviewing the order granting the temporary injunction upon appeal therefrom, if the record does not clearly establish any other superior rights of the appropriator beyond the rights reserved without controversy, the order must be affirmed.

Id.—Question as to Right to Divert Extraordinary Flood Water Not Presented—Conflicting Evidence—Decision Not Disturbed.—The question as to the right of an upper appropriator to divert water, as against a riparian owner, which runs at times of unusual and extraordinary floods in such quantities that the intended diversion could not appreciably affect or substantially injure riparian rights, is not presented by the record, when, as against the evidence for defendant to that effect on the motion for the injunction there was strongly conflicting evidence, for the plaintiff, to show that all of the waters of the stream formed one continuous body at all times, passing plaintiff’s riparian land, and formed no vagrant water, and the court acted upon plaintiff’s evidence to sustain the injunction. In such case, the decision will not be disturbed upon appeal.

Id.—Riparian Rights Against Upper Appropriator—Reasonable Use Inapplicable—Ordinary and Increased Flow.—The doctrine of reasonable use applies only as between riparian owners, and such an owner has the right, as against an upper appropriator, to have the stream flow past his land in its accustomed channels, as part of his land, without limit by any measure of reasonable use, not only with reference to its ordinary and usual flow in the dry season, but also with reference to its increased flow following the annual rains and the melting of the snow in the region about the head of the stream, if it does not cause vagrant water, but flows in a continual stream, though overflowing the banks of the channel formed in the dry season.

Id.—Property Right's of Riparian Owners—Public Policy—Eminent Domain.—The property rights of riparian owners as against appropriates, are not subject to any mere rule of public policy, and cannot be divested without compensation under the law of eminent' domain.

Id.—Prior Suit Elsewhere to Quiet Title to River—Plea of Prescriptive Rights—Complaint to Enjoin Acts Pendente Lite— Reservation of Less Rights—Discretion.—When a prior suit was brought in Madera County by plaintiff and another riparian owner to quiet title to Fresno River against the same defendant, who pleaded therein a prescriptive right to four hundred inches of water per second; and subsequently the present action was brought in Merced County to enjoin acts of diversion committed pending the former suit, the complaint in which did not include any prescriptive rights, the mere reservation in the temporary injunction of only two hundred and twenty inches per second as regards prescriptive rights, does not render the form of the injunction order an abuse of discretion.

Id.—Prescriptive Bights Not Adjudicated—Besult of Prior Suit— Duty to Modify Injunction.—The mere reservation made in the temporary injunction of less prescriptive rights than were claimed in the prior Madera County suit, did not adjudicate the extent ofz those rights; and, if in such prior suit, it should be adjudicated finally that the prescriptive rights are more extensive, it would be the duty of the Merced County superior court to modify its injunction accordingly.

Id.—Venue of Injunction Suit—Claim of Damages to Land in Madera County—Jurisdiction.—The injunction suit to restrain the diversion of water in Merced and Madera counties, though the claim for damages is for wrongful acts of diversion of water from and injury to lands in Madera County, was properly commenced in Merced County, and the temporary injunction was properly issued therein; and the Merced County superior court has jurisdiction to try the case, unless the defendant should demand the trial thereof in the county where the land injured is situated.

Id.—Usually Beourring Floods in Accustomed Channel Part of Ordinary Flow.—When there are natural and accustomed limits to the channel of a river, though the channel for the dry season may be more limited, and that for the wet season may be customary, but more extended, and usually recurring flood waters flow in one continuous stream in the accustomed extended channel and are naturally confined thereto, the regular recurrence of such flood waters must be deemed part of the ordinary flow of the stream, and riparian rights pertain to the whole of it, and no riparian owner can be deprived thereof to his injury.

Id.—Biparian Lands Benefited by Wider Flow.—When it clearly appears that the riparian lands of the plaintiff are greatly benefited by the wider flow of the stream, there can be no ground on which the defendant can divert the same as not being injurious to the plaintiff.

Id.:—Construction of Beservoir by Defendant — Plaintiff Not Estopped. — The plaintiff is not estopped by the expenditure of means by the defendant in the construction of a reservoir, when the plaintiff was ignorant of any unlawful intent in the construction thereof, and took immediate steps to enjoin the unlawful diversion of water by means thereof, when such unlawful intention became manifest, and before water therein had become appropriated to any beneficial use.