The foregoing statement materially shortens the consideration of this appeal. The nature of it has been outlined. It is a request upon the part of the court to overthrow the decisions previously considered and the decisions of Miller Lux v. MaderaC. I. Co., 155 Cal. 59 [99 P. 502], and Miller v. Bay CitiesWater Co., 157 Cal. 256, [107 P. 115], and to decree that notwithstanding the injury to the freehold of the respondents worked by the diversion, the appellants may still divert waters from the San Joaquin River at times when more is carried than is actually put to economic use. This proposition does not present a question of first impression where the action of this court would be free. The proposition has been decided repeatedly against appellants' contention, and for the reasons given in the foregoing consideration those decisions must be adhered to and this appeal denied.

The portion of the judgment appealed from is affirmed.

Shaw, J., Lorigan, J., Angellotti, J., Sloss, J., and Melvin, J., concurred. *Page 449