The following opinion was filed February 28, 1888:
LyoN, J.Each party has moved for a rehearing of the cause. We do not care to discuss the case further on the defendants’ motion, as we find nothing in the argument in support of it which leads us to distrust the accuracy of the judgment hereinbefore announced.
The plaintiff’s motion is not for the purpose of changing the judgment, but to procure a modification of what is said in the opinion respecting the relative rights of the plaintiff and the United States in the improvements which create the water-power in controversy. What was there said on that subject seemed to be calk'd for by the prayer for a mandatory injunction contained in the complaint. It was certainly pertinent to that branch of the case, and hence not *659obiter dictum. Yet it was not absolutely essential to a determination of the right to such injunction. The refusal of such injunction may as well be rested in the discretionary power of the court in that behalf. Inasmuch as the head gates to the defendants’ canal stop the water as effectually as would an embankment of earth, and the plaintiff is not injured by leaving the gates as they are, a refusal of the injunction prayed is a very proper exercise of the discretion of the court. Because the United States is not a party to this litigation, and because the question of its rights in the works of the improvement, as affecting the plaintiff, has not been fully argued, we are constrained to so far modify the former opinion as to leave the question of the relative rights of the plaintiff and the United States in and to the dams and other works pertaining to the Fox river improvement open and undetermined. A rehearing is unnecessary.
By the Court.— Each motion is denied, with $25 costs.