JAMES et al. v. WILD GOOSE MINING & TRADING CO.

JAMES et al. v. WILD GOOSE MINING & TRADING CO. (Circuit Court of Appeals, Ninth Circuit. February 5, 1906.) No. 1,228. Appeal—Order Denying Preliminary Injunction—Determination op Case on Merits. An important question such as one involving water rights in Alaska will not be determined on the merits, on an appeal from an order denying a preliminary injunction, the application for which was heard on affidavits. . Appeal from the District Court of the United States for the Second Division of the District of Alaska. Dudley Du- Bose, G. J. Domen, and Charles E. Naylor, for appellants. Chas. Page, Edward J. McCutchen, and Samuel Knight, for appellee. Before GIRBERT, ROSS, and MORROW, Circuit Judges. [MAJORITY — ROSS, Circuit Judge.] ROSS, Circuit Judge. We do' not think it well to decide the important water-right question argued by counsel for the appellants on this appeal from an order denying them a preliminary injunction, the application for which was heard upon affidavits—especially- as it appears that the only use of the waters in question by the appellants with which it can be claimed that the appellee interfered was by virtue of an appropriation of waters of Ophir creek, Alaska; which appropriation, it seems, was subsequent in point of time to the appropriation of the waters of the same creek under which the appellee claims. The order of the court below refusing a preliminary injunction is affirmed.