Water-rights—Appropriation of Extraordinary Flood Waters as Against Riparian Proprietor.—-The flood waters of a stream, which are of no substantial benefit to the riparian owner or to his land, and are not used by him, may be taken at will by any person who can lawfully gain access to the stream, and conducted to lands not riparian, and even beyond the watershed, without the consent of the riparian owner and without compensation to him.

Id.—Flood Waters not Parcel of Riparian Land.—Such flood waters are not a part of the flow of the stream which constitutes a “parcel” of the land of the riparian owner, within the meaning of the law of riparian rights.

Id.—Ordinary Flood Waters Part of Usual Flow of Stream.—The foregoing rule is not in conflict with the decisions in the cases of Miller v. Say Cities Water Co., 157 Cal. 256, Miller J Lux v. Madera etc. Co., 155 Cal. 59, and Miller Lux v. Enterprise Co., 145 Cal. 652. In those cases the water in question, although in a sense high water, or flood water, was nevertheless a part of the regular and usual flow of the stream for a considerable part of each year and at a time when such flow was of substantial use and benefit to the riparian lands, or the flow of such waters in their accustomed place was necessary to the gathering of water in subterranean strata from which the owners of overlying land were entitled to take it.

Id.—Threatened Diversion of Ordinary Flow—Action to Enjoin— Disclaimer as to All Waters Except Flood Waters—Other Issues Rendered Immaterial—Costs.—In an action by riparian owners to enjoin the defendant from making a threatened diversion of a certain portion of the waters of then ordinary flow of a stream, under a notice of appropriation thereof previously made, and by means of diversion works then in course of construction, an answer, in which the defendant denied any intention of taking water under such prior notice, and disclaimed any right to or intention to take any waters except flood waters, under a notice posted subsequent to the commencement of the action, accompanied by a statement to a similar effect made at the trial, had the effect to eliminate the question of the right and intent of the defendant to take a part of the usual and ordinary flow of the stream; and where the judgment gave the defendant no right to any waters except unusual flood waters, the evidence as to the other water-right once claimed by the defendant under its prior notice, and errors of law in admitting or excluding evidence of it, became, for the purposes of an appeal by the plaintiffs, wholly immaterial and harmless, except upon the question-of costs.

Id.—Allowance of Costs in Equitable Action—Discretion not Abused.—In such an equitable action costs are allowed, apportioned; or withheld in the discretion of the court. Under all the circumstances shown, it cannot be said that the trial court abused its discretion in awarding costs to the defendant.

Id.—Only Lands Bordering Stream have Riparian Rights.—In law, only those tracts of land which border upon the stream, notwithstanding others may be included within the watershed thereof, are endued with riparian rights.

Id.—Judgment Awarding Flood Waters to Appropriator—Possibility of Use by Riparian Proprietor.—As such extraordinary flood waters do not come within the protection of the law of riparian rights, a judgment awarding an appropriator a portion thereof for nonriparian use cannot be assailed by riparian owners because of a mere possibility that they might in the future desire to impound such waters for use on their own lands.

Id.—Appeal—Immaterial Evidence and Rulings Thereon—Use of Water by Appropriator.—On an appeal by the riparian owners from the judgment awarding the appropriator a portion of the extraordinary flood waters, the evidence concerning the recording of the notice of appropriation, and as to the exact amount of the riparian land, and the use to which the defendant intended to apply the water, becomes immaterial, and errors in relation thereto require no consideration, as they could not operate to the prejudice of the appellants.

Id.—Findings as to Percolation and Seepage—Evidence.—The evidence, although conflicting, is held to sustain the finding that there was no percolation or seepage of water from the stream which benefited the riparian land, and was ample to have warranted the court in concluding that the water to be taken by the defendant would have no appreciable effect upon such seepage or percolation as may occur, and that its flow down the stream would not in that matter benefit the plaintiffs’ land.

Id.—Findings—Situation of Headgate—Judgment Requiring Head-gate to be Maintained in Conformity With Conditions Existing—Finding of Amount of Ordinary Flow Immaterial.—-Where the findings in such action determine that the headgate of the defendant’s diversion dam is situated at such a height above the stream that it will not divert any water therefrom except during unusual floods and freshets, and the judgment awarding it a portion of such unusual flood waters requires such headgate and the bed of the stream to be kept in conformity with existing conditions so that no other water will ever be taken, and specifies the width and depth at which the channel of the stream is to be maintained for that purpose, the riparian proprietors are sufficiently protected thereby against the taking of the ordinary flow and ordinary flood waters, and a finding as to the exact amount of the ordinary flow and ordinary flood waters is immaterial.

Id.—Judgment a Mandatory Injunction—Defendant may be Compelled to Maintain Relative Position of Headgate With Bed of Stream.—Such judgment operates as a mandatory injunction against the defendants taking any portion of the ordinary flow or ordinary flood waters of the stream, and safeguards the plaintiffs against changes of conditions from any cause, natural as well as artificial. If the bed of the stream should fill up, either naturally or artificially, so that the water to which the plaintiffs were entitled was diverted by the headgate, the defendant could be compelled to refrain from diverting any water at all until it had restored the stream to the condition, with respect to its capacity to carry water past the gate, as that in which it was at the time the judgment was rendered.

Id.—Failure to Find as to Exact Amount of Ordinary Flow of Stream.—The failure of such judgment to specify in miner’s inches, or in any other artificial measure of quantity the amount of water which must be suffered to flow in the stream before the defendant takes any, does not render the judgment uncertain.

Id.—Construction of Judgment on Appeal—Law of Case.—The construction given to such judgment by this court, in determining- the-appeal therefrom, becomes the law of the case and binding on the lower court in all subsequent proceedings and whenever its interpretation is material.

Id.—Witness not Hydraulic Engineer—Evidence of Measurement of Flow of Stream—Correct Method op Measurement.—It was^not error, on the trial of such action, to allow a witness who was not a hydraulic engineer to testify to certain rough measurements he had made of the quantity of water flowing in the stream, where the methods of measurement adopted by him were correct in principle. The weight of such evidence was for the trial court.

Id.—Qualification of Witness to Make Measurement—Cross-examination may be Limited.—It was discretionary with the trial court to limit the cross-examination of a witness as to his qualifications to make such measurements, when it appeared that he pursued the usual and correct method of measurement.

Id.—Order Refusing New Trial—Newly Discovered Evidence—Sufficient Opportunity to have Produced Evidence.—It was not error to refuse the plaintiffs a new trial of such action because of newly discovered evidence concerning the relative elevations of the head-gate and the stream, and the physical characteristics of the stream at that point, when the answer, disavowing any claim to the usual flow and claiming only the flood waters, was filed in February, 1909, and the trial was begun in the following December.

Id.—Review of Findings—Affidavit Used Solely on New Trial—Map not in Record.—An affidavit used in the trial court only upon a motion for a new trial cannot be considered on appeal in determining the sufficiency of the evidence to support the findings, and a map which is not in the record at all cannot be considered for any purpose.