Appeal from a judgment of the Superior Court of Santa Cruz County, and from an order denying a new trial.

The following are the fifth and sixth instructions requested by the defendants and refused by the court: 5. It is a fact admitted in this case that the Santa Cruz Water Company is a corporation organized for the purpose of supplying the city of Santa Cruz and its inhabitants with pure, fresh water, and that said company has acquired, and now holds title to, and the right to divert, the waters of Major’s Creek and both branches of Branciforte Creek, for the purpose of so supplying said city and its inhabitants. In view of this admitted fact, the court instructs you that the city of Santa Cruz has the power to acquire from said company the waters of said streams, either by purchase or condemnation; and if you find, from the evidence, that the waters from said streams are sufficient to supply said city and the inhabitants thereof with water, and you further find that both said streams are in much closer proximity to said city than Laguna Creek, and that they can be brought - into and distributed through said city at less expense than the waters of Laguna. Creek, then the court instructs you that the taking and acquisition of the waters of Laguna Creek is not, within the meaning of the law, necessary; and you will find a verdict for the defendants. 6. If the jury find, from the evidence, that the waters of Laguna Creek, at the point at which it is proposed to divert them, are eleven miles distant from the city of Santa Cruz, and they further find that much nearer than this to said city are the waters of Major’s Creek, and of both branches of Branciforte Creek, and that said Major’s Creek and Branciforte Creek afford a perennial flow of pure, fresh water, sufficient to supply said city and its inhabitants with pure, fresh water, and the jury further find that the waters of Major’s Creek and Branciforte Creek have already been diverted and appropriated to, and are being used for, the purpose of supplying said city and the inhabitants thereof with water, then the court instructs you that the acquisition of the waters of Laguna Creek is not necessary for the supply of said city and its inhabitants, and the jury will find a verdict for the defendants. Further facts are stated in the opinion of the court.