Joerger

This is an appeal from an order directing the issuance of a temporary injunction to restrain the defendants “from continuing to divert any of the waters of Hat Creek from the natural channel of said stream, when the same passes through, over, along, by, upon and past”, the forty acres of the plaintiff’s riparian land. It is the appeal referred to as “now pending and undetermined” in our opinion in Joerger v. Mt. Shasta. Power Corp., 214 Cal. 630, 634 [ 7 Pac. (2d) 706 ], in which it was decided that the writ of supersedeas was not necessary in order to stay the injunction pending appeal for the reason that the injunction was mandatory and was automatically stayed by the appeal. The opinion in that proceeding was filed on January 25, 1932. Two days before, on January 23d, the opening brief of the defendants and appellants herein was filed and no further briefs have been filed.

The defendants are entitled to a .reversal on the ground that injunction will not lie on the facts here presented on behalf of one opposite riparian owner as against the other. This was plainly indicated in our opinion in the supersedeas proceeding and no further comment on that subject is necessary.

The…