CONCURRING OPINION OP
MR. JUSTICE WHITING.I am not satisfied that an injunction ought to be granted under the evidence and circumstances of tins case to prevent the defendants maintaining their dam, which has been completed since the bringing of the suit, and I concur in the opinion of the Chief Justice that sirch injunction should be refused at the present time without prejudice to the plaintiffs to renew their petition if the facts should hereafter warrant it.
It seems to me, under the circumstances of the case, that it is just and right that the defendants’ use of the dam should be subject to the uses of drainage of plaintiffs’ land as decided by the Chief Justice, and I so far concur.
*313Tlie case as presented to us is very unsatisfactory, and it does not present snob a clear and distinct issue as will enable me to decide upon tbe questions of law involving prescriptive and riparian rights, and bow far tbe common law of England in relation thereto is applicable to tbe conditions of this country in regard to water. One element in this particular case which needs fuller explanation is tbe fact that tbe river itself is claimed as being owned by tbe estate of B. P. Bishop, and tbe whole river is leased to C. A. Brown, tbe lessor of defendants, and at tbe same time Brown’s lessor has leased part of the land bordering on tbe river to some of tbe plaintiffs.
This is a cause in which tbe court, being in doubt, should exercise its sound discretion in refusing tbe injunction, but, however, without creating a bar to other actions to protect plaintiffs’ alleged rights if they are satisfactorily found to be endangered; that is, without prejudice to any further action or suit.