Gould

This action was brought by plaintiff, who is a lower riparian proprietor on a stream, to restrain the defendant, who is an upper riparian proprietor on the same stream, from diverting water therefrom. Judgment went for defendant, and plaintiff appeals.

The case has been here twice before, 77 Cal. 66 ; 91 Cal. 146 . On the first appeal a judgment in favor of defendant was reversed on account of defective finding; and it was said in the opinion that under the pleadings, as they then stood, evidence of diversions of water by third persons would be admissible only as to the amount of damages (which were waived by plaintiff); and that findings as to the acts of certain Chinamen and others were irrelevant and against the admissions of the answer. Certain principles as to riparian rights were also stated for the guidance of the court on another trial. When the case went down to the trial court defendant asked leave to file a certain amended answer, to which the plaintiff objected; the court allowed it to be filed; and plaintiff excepted—preserving his exception in a bill of exceptions. But on the second trial judgment was rendered for plaintiff; so that the objection to the amended…