(dissenting)-.
I cannot concur with my brethren in this case. The injunctional order granted by the court below perpetually restrained and enjoined the defendants from in any manner altering or changing the flow of water from the measuring box, and from changing or altering the measuring box or the measurements of water thereof, and from taking *245from said stream any larger quantity o'f water than 67-150 of a cubic foot per second. This, was a preyentive injunction, and not a mandatory injunction. It was a perpetual injunction upon a final decree granted by the court, after hearing the testimony of the witnesses on both sides of the case. Upon a full hearing, and haying all the testimony before it, the court below denied the motion of the appellants to fix a supersedeas bond, and thereupon ■continued such order in full force during the pendency of the appeal. Upon an appeal from such order, in refusing to fix a slipersedeas,' and without haying the testimony before us, this court is asked in this collateral way to pass upon and reverse the order, based upon a final decree in the court below. The order was within the discretionary power of the lower court to make or refuse; and, having been refused, after a full hearing, this court, should not reverse the order until the hearing of the appeal upon the main case. In doing so, this court is making an order and deciding the case without having the proofs or knowing what injury may follow to the- party in whose favor ■ the order was made. "When the lower court has exercised a discretionary power in refusing to suspend the injunction, or allow the supersedeas, such order should not be disturbed during the pendency of the appeal, nor until the final hearing thereon in this court. Swift v. Shepard, 64 Cal. 423, 1 Pac. 493; Cochrane v. Bussche, 7 Utah, 233, 26 Pac. 294; U. S. Sup. Ct. Rule No. 93; Bliss v. Superior Court, 62 Cal. 542; Heinlin v. Cross, 63 Cal. 44; Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136; Mining Co. v. Fremont, 7 Cal. 130; Leonard v. Land Co., 115 U. S. 465, 6 Sup. Ct. 127. The appeal should be dismissed, with costs.