It would seem that respondents, who have applied for a rehearing, misconstrue the decisive portion of the original opinion with respect to which they ask a rehearing. It was and still is the view of a majority of the court that the prior appropriator of the waters of a stream will not be permitted to change his point of diversion, if such change will injuriously affect the rights of subsequent appropriators as they existed at the time such subsequent appropriations were made; for a subsequent appropriator has a vested right to a continuance of conditions as they existed when he made his appropriation. With this principle in mind, in order to determine the rights of the prior as well as the subsequent appropriators, it was thought necessary for the trial court to take further testimony to determine the conditions that existed when subsequent appropriations were made. The following paragraph of the original opinion requires further testimony and states the view of the "majority" as to the law if certain given facts are found to exist:
"It is the view of the majority of the court that, under the pleadings in this case and as bearing upon the question of the right of appellants to change the point of use, further testimony should be taken for the purpose of showing, if it be a fact, that the 60 inches of water decreed to appellant *Page 660 Jones was supplied from springs arising within or immediately adjacent to Rock Creek above the point where the waters heretofore have been diverted or were diverted at the time subsequent appropriators made appropriations of the waters of Rock Creek, or below the point where it is proposed to change the point of diversion, and the court to make findings of fact thereon. In other words, if the 60 inches of water supplied to appellant Jones arose between the point where the same was diverted and the point where it is now proposed to divert the water, and that condition existed at the time subsequent appropriators made their appropriations, no change in the point of diversion or use can be made, if by reason thereof it would be injurious to subsequent appropriators."
The petition for rehearing is denied.
Givens and Taylor, JJ., concur.
Budge, J., adheres to the views heretofore expressed.