An examination of the original opinion in this case (Crockett v. Jones, 42 Idaho 652, 249 P. 483), discloses that the judgment was reversed for a number of reasons; The Utah Construction Company had not proven its right to do business in this state; neither the ownership nor the aridity of the various tracts of land had been established; and the trial court had failed to make findings on the condition of the stream, when the prior appropriations were made, before the High Line Canal was built.
In the record, as it first came to us, there was considerable testimony that, prior to the construction of the High Line Canal; sufficient water arose in, and returned to, the stream below the diversion points of the subsequent appropriators to supply Jones' right, and the majority of the court thought there should be a finding on that issue before the cause was finally determined. That this was the position of the "majority," I believe is fully disclosed in the last paragraph, of the former opinion, on page 657, and by the *Page 505 opinion on rehearing; and therein the then majority discussed the rights of the parties if the evidence disclosed that Jones' right had been supplied from water returning to and arising in the stream prior to the construction of the High Line Canal.
The present majority, referring to the original opinion, says:
"In other words, this court held that if there were springs in the course of the creek, at the time the subsequent appropriators initiated their rights, which springs then supplied Jones with his decreed irrigation water, the proposed change in place of use would be injurious to appellants and would not be permitted. The effect of the decision, conversely stated, is that if such springs did not exist at such time and place, the transfer should be allowed, and the injunction then in force should be dissolved."
Such an inference may be drawn from the former decision, but nothing more than an inference. The law of this case was not determined in the former opinion. Much was said in the former opinion, but all the majority did was to send the case back for additional testimony and findings so that we would have all the facts in order to decide the very important and perplexing question we now have before us.
The findings of both trials are without dispute to the effect that since the completion of the High Line Canal, the inflow or return flow into Rock Creek from seepage water has been more than sufficient to satisfy Jones' right in full and that since that time the junior appropriators also have had an ample supply.
The former opinion held that Jones should not be required to substitute a back-flow right for a natural flow right from Rock Creek. That conclusion is correct. The precise point is, however, can Jones change his point of diversion, and that depends on whether such change will injuriously affect the junior appropriators. If the flow in the stream at the present time was the same as at the time the junior appropriators *Page 506 made their appropriation, there would be no injury, because the trial court found there was not then sufficient return flow to satisfy Jones' right. As the stream actually flows at the present time, however, there is sufficient seepage to satisfy the Jones' right, and to now permit the change will injure the junior appropriators.
In Washington State Sugar Co. v. Goodrich, 27 Idaho 26,147 Pac. 1073, referred to in the briefs of counsel in the previous opinion but not in the opinion of this court, the court, passing on the question of what condition of the stream and the time when the condition of the stream must be considered as bearing on the rights of senior appropriators to change their point of diversion, quoted with approval from several decisions of the Supreme Court of Colorado, among them the following fromFarmers' High Line Canal Co. v. Wolf, 23 Colo. App. 570,131 Pac. 291:
"As against the change sought by petitioners, the junior appropriators had a vested right in the continuance of the conditions that existed on the streams at and subsequent to thetime they made their appropriations, unless the change can be made without injury to such right." (Italics ours.)
In other words, this court said that if the change injures the junior appropriators with reference to conditions existing in the stream either at the time of the appropriation or at the time the change was sought, the change cannot be made.
Conceding that sufficient attention was not given toWashington State Sugar Co. v. Goodrich, supra, in the former opinion herein, I believe that the rule as laid down in that case is sound in logic and reason, and I do not believe this point was intended to be overruled in the previous opinion herein, for the "majority" in the first opinion herein were considering the law applicable to the condition of the stream when the junior appropriations were made, not the conditions when the change was sought. Vide second paragraph of opinion on rehearing, Crockett v. Jones, supra, 42 Idaho 652 *Page 507 at 659, 249 P. 483 at 485. Nor do I think the point made in the Goodrich case, supra, should be overruled.
Therefore the change in the point of diversion should not be allowed. (Baca Ditch Co. v. Coulson, 70 Colo. 192,198 Pac. 272; Fort Collins Milling Co. v. Larimer Irrigation Co.,61 Colo. 45, 156 P. 140; Fort Lyon Canal Co. v. Rocky Ford Co.,79 Colo. 511, 246 P. 781; Trinchera Ranch Co. v. TrincheraIrr. Dist., 83 Colo. 451, 266 P. 204.)
I am authorized to say that Wm. E. Lee, J., concurs with me in this dissent.
Petition for rehearing denied.