After the opinion herein was filed the plaintiffs applied to have the judgment of this court and the court below modified. They claim that the judgment of the lower court is so uncertain in its terms that if left unmodified there is danger that it may be understood to permit the defendant company to take a part of the ordinary flood flow of the stream.
The findings state, in effect, that the defendant's headgate is forty-seven inches higher than the bottom of the creek at that point, and that at that comparative elevation (and this is the controlling fact) it will not divert any of such ordinary flood water: in other words, that it is only the occasional and unusually high floods which are high enough to enter *Page 421 the gate at such elevation, and that when such flood does so enter there will be a quantity flowing down the creek and passing the headgate equal to the ordinary flood flow thereof. There is substantial evidence to support this finding and hence we not only cannot set it aside, but must accept it as fact. Hence, under present existing conditions as the findings state them, the defendant cannot divert any of the ordinary flow or usual flood water.
The third paragraph of the judgment provides that said corporation defendant "shall provide for the permanent maintenance of the said headgate under the present existing conditions and for the present capacity of said creek at the said headgate . . . so that there shall flow in said creek past said headgate the usual and normal flow of the waters of said creek at said point, as herein defined (i.e., including usual flood waters), before there shall be any diversion of flood waters by defendant corporation."
If this is done and the findings are true, as we must presume, the plaintiffs will be perfectly protected in their right to the usual flow and ordinary flood waters. It is in the nature of a mandatory injunction. The defendant corporation and its officers, agents, and employees will be subject to punishment for contempt if they disobey it. The provision applies to and safeguards against changes of conditions from any cause, natural as well as artificial. If, for example, a flood should fill in the bed of the creek with rocks at that point so that a part of the ordinary flood water would enter the gate, or so that water would enter it at a lower stage than under present conditions, the defendant could be compelled to refrain from diverting any water at all until it had restored the creek to the same condition, with respect to its capacity to carry water past the gate, as that in which it was at the time the judgment was rendered. An artificial change would entail the same consequences.
It is suggested that it is uncertain because it does not specify in miner's inches, or in any other artificial measure of quantity, the amount of water which must be suffered to flow in the creek before the defendant takes any. The number of miner's inches is not the criterion given by the judgment, but it is certain nevertheless. The existing conditions, whether expressly stated or not, that is, the comparative elevations *Page 422 of the creek-bed and the floor of the gate, the various natural widths and grades of the creek at and near the gate, the directions of its course, and the roughness and irregularities of its bed at all places near enough to the gate to affect its capacity at that point, absolutely determine its carrying capacity at that point. These conditions the defendant must preserve and so long as they remain the same the capacity will remain the same.
The reference in the first paragraph of the judgment to the usual and normal flood-waters as a "volume of water equal to at least 5000 miner's inches," does not adjudge that quantity to be the usual flow. It is obviously a mere estimate of the minimum. It proceeds to adjudge that it means all that the creek will carry when the surface is as high as the floor of the headgate, with the creek there thirty feet wide and forty-seven inches below said floor, whether more or less than five thousand inches. Counsel express a fear that the judgment may be so interpreted hereafter by the court below as to give the defendant greater rights than it gives as we construe it. The construction given to a judgment of the lower court by this court, in determining an appeal therefrom, constitutes the law of the case and is binding on the lower court in all subsequent proceedings and whenever its interpretation is material.
Appellants also quote statements from an affidavit used in the court below only upon a motion for a new trial and they present a map which is not in the record at all, all of which as they claim tends to show that the findings as to the width, depth, and carrying capacity of the creek under the level of the headgate, are incorrect, and that it will in fact carry much less than five thousand inches and less than it would carry if the stated width and elevations were correct. The map cannot be considered for any purpose. The affidavit cannot be considered in determining the sufficiency of the evidence to support the findings.
Under all the circumstances, we do not think any modification of the judgment is necessary to protect the plaintiffs in the rights which are awarded to them therein.
Sloss, J., and Angellotti, J., concurred. *Page 423