James

We do not think it well to decide the important water-right question argued by counsel for the appellants on this appeal from an order denying them a preliminary injunction, the application for which was heard upon affidavits — especially as it appears that the only use of the waters in question by the appellants with which it can be claimed that the appellee interfered was by virtue of an appropriation of waters of Ophir creek, Alaska; which appropriation, it seems, was subsequent in point of time to the appropria *476 tion of the waters of the same creek under which the appellee claims.

The order of the court below refusing a preliminary injunction is affirmed.