I dissent from the order denying a rehearing of this case, because I do not think it ought to be finally disposed of here without a decision of the most important question involved—a decision upon which, if in accordance with the contention of the appellants, would necessarily demand a reversal, or important modification, of the judgment appealed from. The right of appellants to interfere with the lakes referred to in the opinion of the court is but one of the questions presented in the briefs of counsel, and to my mind much the less- important of the two leading propositions upon which he relies.
It appears from the record that the lands of the plaintiffs are riparian to the stream upon its lower course, near where it empties into Owens river. The stream heads in certain small lakes near the summit of the Sierras, and is fed during the spring and early summer by the melting snows. At such seasons it carries a large amount of water, much more than the plaintiffs can profitably use. The findings of the superior court show that there is a surplus of water when the river is high, but do not indicate the quantity of that surplus. There is evidence to the effect that it is often very large. Notwithstanding this admitted surplus of water over the needs of the plaintiffs, and the fact that it goes to waste below them, the defendants are absolutely enjoined from diverting to their lands any *584portion of the stream at any time. The question is tlius presented, whether a riparian owner upon the lower course of one of our mountain streams can insist, as against an appropriator whose land is within the watershed of the stream, hut non-riparian, that the whole stream in times of flood, when he has no use for the water himself, must come down to him. It may be that this is the riparian doctrine established in this state, but I doubt it; and at all events the question, when it is fairly presented, is too important to be ignored.