I concur in the judgment and in the opinion of Justice McFarland, which is fully supported by the ground upon which he holds that the superior court erred in overruling the objection to the admission in evidence of the judgment-roll in the case of Renner v. Azevedo et al. There was, as the main opinion shows, no privity between the defendants and either of the parties in Renner v. Azevedo, but there is even a stronger and more conclusive reason for holding that the judgment in that case can never operate as an estoppel in this case. The right in litigation there had no sort of connection with the right in controversy here. There Renner, as trustee of the Bohnerts, was suing Azevedo and others (whose rights, such as they may have been, *Page 141 have never vested in these defendants) for a diversion of the waters of the main Greenhorn Creek above the head of the Cornish ditch, a diversion by which the owners of that ditch were deprived of their right to all the waters of the main branch naturally flowing to the head of their ditch between six o'clock P.M. and six o'clock A.M. A litigation of that controversy could by no possibility involve the rights of the owners of the Cornish ditch to the entire flow of the Heybrook and Barker gulches during the whole twenty-four hours, for the waters of those gulches naturally flowed into Greenhorn Gulch below the head of the ditch, and were intercepted by the ditch below its head. The only shadow of a reason for the claim that any right to the waters of those gulches was involved in Renner v. Azevedo is that the plaintiff in that action by way of description of his ditch used the language: "Was the owner and in possession of that certain water ditch known as the `Cornish Ditch' which takes the waters of main Greenhorn Creek and gulches adjacent thereto, and conveys the same to the North Fork of said Greenhorn Creek." This was a perfectly correct and proper description of the ditch for the purpose of the complaint and the judgment, but it did not tender any issue as to the rights of the plaintiff to the waters of the adjacent gulches, and when the complaint which follows this description is examined it appears that the only injury alleged is the diversion of the waters of Greenhorn Creek at a point to which the waters of the gulches never flowed and never will flow while the law of gravitation continues in force.
Henshaw, J., concurred. *Page 142