The opinion
THE COURT.
The petition for an order transferring this cause to the supreme court for rehearing is denied. We do not, however, approve that part of the opinion of the district court of appeal concerning the right of the defendant to take driftwood from the land of the plaintiff. The judgment of the lower court merely establishes the right of the defendant to a way through plaintiff’s land, for the purpose of hauling thereover driftwood from the Yuba, river, not from plaintiff’s land. It declares nothing in regard to the right or title the defendant may have, or may obtain, to such driftwood in the *235 river. That right or title was not in issue, and it does not appear to be any concern of plaintiff, unless defendant takes driftwood to which plaintiff has a better right or title, in which case the judgment will not be an estoppel against plaintiff or in favor of defendant.