Lillis

I concur in the judgment affirming the order appealed from.

The object of this action is simply to enjoin the defendant (a corporation) from diverting from the channel of Kings river, into its ditch in Tulare county, a greater quantity of water than fourteen thousand four hundred cubic inches per second, on the ground that it had been adjudged by the superior court of that county, in a former action between the same parties, that this defendant, as against the plaintiffs, was entitled to divert only that quantity of water. In their complaint in this action the plaintiffs pleaded the former judgment as an estoppel. Judgment herein was in favor of the defendant, and plaintiffs appeal from the judgment, and from an order denying their motion for a new trial, made on a bill of exceptions, which, among other things, contains a copy of the judgment-roll in the former action.

The principal question presented for decision is, what was adjudged in the former action as to the quantity of water to which defendant was entitled ? The former action was of the nature of a common-law action on the case, brought by the plaintiffs herein on September 11, 1883, to recover from this defendant damages for the diversion of water from Kings river, to the injury…