The matter thus came on for hearing; the defendant offered in evidence the pleadings and files in No. 5 IDA, including the amended complaint, amended and supplemental answer, the reply, decree, findings of fact, conclusions of law, judgment, and remittitur.
The court, having reserved decision to examine the proof, now finds that the original action No. 510A was between the plaintiffs C. M. Thorndyke, M. A. Thorndyke, there appearing as Maud Annette Greenig, V. McFarland, and James Kelly, plaintiffs, and the Alaska Perseverance Company, defendant. That the same interest in the waters of Purvey creek was there involved and litigated, and the parties in interest in that action are identical in this, with the exception that James Kelly does not appear in the present action either as a party to the suit nor as a predecessor in interest. It further appears that the cause was tried on its merits both in this court and in the Circuit Court of Appeals for the Ninth Circuit, and an adverse decision to the plaintiffs’ contentions therein found in each instance. It also further appears that the time for removal of the cause to the United States Supreme Court has long since expired, and, no extension of time having been granted, the issues are closed. It thus clearly appears that the plaintiffs being identical or privies, and the subject-matter *120the same, estoppel should result by reason of the judgment, if conclusive in the cause No. 510A.
. After examining the same, I have no doubt that the plaintiffs herein are forever estopped from setting up any claims to the waters of Lurvey creek or against the defendant, except as in the opinion in the decree set out in No. 510A, in which case it is decided that the plaintiffs, their predecessors or successors in interest, had no right, title, or interest in the waters of Nurvey creek until the defendant, the Perseverance Mining Company, had diverted 4,000 miner’s inches and to the then present capacity of their flume and pipe lines and ditches as constructed, excavated, or laid and in use.
L,et the decree be entered accordingly.