This is an action by plaintiff in his own behalf and on behalf of all others similarly situated against the Wood River Land Company, a corporation, to have a portion of its decreed water declared abandoned and lost for a failure on its part, for more than five years, to apply such water to a beneficial use. The several intervenors withdrew their respective pleadings and joined plaintiff in demanding the relief prayed for. There is no controversy between the parties as to the relative position of plaintiffs and defendant and their predecessors in interest as to their respective priorities prior to this alleged abandonment on the part of respondent. The basis of respondent's claim is a decreed right entered in December, 1909, in the case of Frost et al. v. Alturas WaterCompany, in the fourth judicial district court, for Blaine county, wherein one Riley was decreed 5,595 inches of water out of the Big Wood River, with priority from March 24, 1883, for use upon lands described in that decree. Appellant and those who join with him are individual farmers owning lands situated in the Wood River Valley, adjacent to Big Wood River, whose rights are also based upon the decree in the Frost case, which are conceded to be subsequent in time to the rights decreed to Riley, respondent's predecessor in interest.
The controversy between the respective parties to this action, as contended for in their petition for rehearing, arises over appellants' claim that of the total amount decreed to Riley, which was subsequently acquired by respondent, it has, by failure to apply more than 3,850 inches of such *Page 52 decreed water to a beneficial use during the years of 1910 to 1914, inclusive, abandoned and lost all of said decreed water in excess of this 3,850 inches, and that such excess of approximately 2,150 inches has remained in or been returned to Big Wood River since 1910, and has been delivered to appellants by the water-master in charge of the distribution of the water of said stream, and by them beneficially applied to their respective lands, and that by reason of such abandonment, respondent is precluded from claiming any right in or to the use of the same.
The judgment of the court below was against appellants' contention, and the cause is here upon appeal, based upon the single assignment that the evidence is insufficient to sustain the findings of fact and conclusions of law and judgment entered thereon.
The evidence is voluminous, and we will not undertake a detailed analysis of all of the testimony. The ditch in question, through which respondent has diverted its water since the decree of December, 1909, is commonly referred to as the Riley Ditch, and appellants concede to respondent a right to the prior use of all water that could have been diverted through the Riley Ditch during the years 1910 to 1914, inclusive. But appellants contend that this ditch did not have during this time, and does not now have, sufficient capacity to carry more than 3,850 inches. The engineers who testified on behalf of appellants fixed the maximum carrying capacity of this ditch to be not greater than 2,600 inches. The engineer Sloan testified that in 1919 its maximum capacity at its smallest point, which be fixed as below the highway bridge, was 2,200 inches. The engineer Vernon made a measurement in 1912, and found the greatest carrying capacity of this ditch to be 2,600 inches above the Howard crossing.
Respondent sought to meet this showing made on behalf of appellants by its witness Chapman, who had also been its water-master during several years of this time, who fixed the maximum capacity of the Riley Ditch to be 3,850 inches during one of the years in which he was so employed, *Page 53 but found that in other years its capacity was as low as 3,100 inches. The witness Campbell, who qualified as an engineer, and who appears to be the witness chiefly relied upon by respondent to show the capacity of its ditch, made a number of measurements during the year 1919. By meter at that time it was only carrying 2,178 inches near the headgate, and another measurement showed 3,404 inches at the same point. His computation as to its theoretical capacity at a point 200 feet above what is known as the Mizer Bridge was 3,863 inches. Campbell made a great number of cross-sections of this canal, and appears to have made an exhaustive effort to ascertain the maximum carrying capacity of the Riley Ditch, and while the measurements at various stations greatly varied, at no time or place does he fix the maximum carrying capacity of this ditch to be greater than 3,863 inches.
Much stress is laid by respondent upon the fact that many of the measurements of this ditch were made during 1918, 1919 and 1920, and it contends that it would not follow that the condition of the ditch with regard to its carrying capacity remained the same during all of this time, or that its capacity at the time these later measurements were taken was the same as it had been during the years from 1910 to 1914, all of which is quite true. But the measurements of the engineer Vernon were made in 1912 and again in 1920, and show that the carrying capacity of this ditch was substantially the same at the time of both measurements. Numerous witnesses testified that they lived in the vicinity of this canal, that they were required to pass over it frequently during this entire period, and that no changes were ever made which would tend to materially increase its carrying capacity at or near the points where the several measurements were made by the engineers who testified in this action. It is further shown that this canal is crossed by a highway by means of a bridge, and also by the railroad in the same manner, and that except for the driving of some additional piles at one time for the purpose of raising the bridge, no change was made that would tend *Page 54 to increase the carrying capacity of this ditch. While the testimony of the witness Campbell shows that by a comparatively small expenditure the canal could be greatly enlarged at the cross-sections where he found the smallest carrying capacity, it appears from the testimony that in order to make this change it would be necessary to remove earth and rock in place. There is other evidence in the record tending to show that the carrying capacity of this canal at the points where the several measurements were made, upon which its carrying capacity is predicated, has remained substantially the same during all of the years following the Frost decree, to about the time of the commencement of this action.
The parties stipulate that 1,600 inches of water is sufficient to water the land originally reclaimed and watered from the Riley Ditch, and for which the appropriation decreed in 1909 was intended. It appears from the record that no lands have ever been watered or can be watered below the town of Bellevue from the Riley Ditch as at present constructed, but that a spillway exists about 900 feet below the intake of the Riley Ditch, where, for a number of years, the excess water diverted through its headgate and not used upon the lands under the Riley Ditch has been allowed to flow back into the natural channel of the river. For some time respondent company has been selling water out of its appropriation to the Riley Ditch under the Frost decree, such water being taken out of the river and used upon lands below the town of Bellevue. Appellants' counsel suggest that after the entry of judgment below in the instant action, respondent applied to the State Reclamation Department for permission to sell some 4,500 inches of water for use upon the lands below Bellevue, the same to be diverted from Big Wood River near the point of intended use, but even if this be true it is not a matter that can be here considered upon the record before us.
However, it does appear from the record that the Riley Ditch was not so constructed that any of these lands below Bellevue could be watered from it, and that it was probably *Page 55 never contemplated by the original appropriators for the Riley Ditch that it should water such lands. The stipulation in the record that the right to the use of 1,600 inches of water be conceded for the lands directly under respondent's canal lends color to appellants' claim that the excess water which it Claims has been allowed for years to flow back into the river a short distance below the intake of the Riley Ditch, and above the point where the measurements of the canal, as given by the several engineers, were taken, has never in fact been applied to the lands, for which it was appropriated, and that this ditch has never in fact had the capacity to carry all of the water mentioned in the Frost decree throughout its entire length. Respondent cannot at this time rightfully contend for the use of the amount originally decreed to it in excess of the carrying capacity of its canal, unless it made a showing that this excess was diverted and applied to beneficial use in some other manner prior to the intervention of adverse rights, which it has not done.
The highest estimate of its engineers fixes the maximum capacity of its ditch at 3,863 inches. While it cannot be said that there is not a scintilla of evidence in the record tending to support respondent's contention that its canal has carried, at intervals during the time in controversy, the 5,595 inches decreed in 1909, the evidence which it claims tends to support this contention is in conflict with the facts established by its own engineers, who appear to have made a careful and scientific computation of the carrying capacity of this ditch, as well as the evidence of the engineers introduced on behalf of appellants. We think, however, that the testimony of witnesses who do not base their testimony as to the carrying capacity of a canal upon anything more definite and certain than what they are accustomed to in irrigation, and that they can accurately estimate the carrying capacity of a canal some six to eight miles in length, and who express the belief that this ditch had capacity throughout its length equal to the amount decreed to it in 1909, does not create such a conflict in the evidence *Page 56 that this court is bound by the findings of the court below. A conflict in the evidence should have a more substantial basis than this.
It is a well-recognized rule of law that where oral testimony of witnesses, based merely upon opinions or estimates, conflicts with physical facts, such evidence should not be regarded as sufficient to create a substantial conflict in the evidence. As the rule is sometimes stated, where the physical facts are such as to preclude all reasonable probability that the testimony of a witness is true, it being contrary to well-known physical laws, such testimony may be disregarded. (Cochran v. Gritman, 34 Idaho 654, 203 P. 289; Chybowski v.Bucyrus Co., 127 Wis. 332, 106 N.W. 833, 7 L.R.A., N.S., 357; Fleming v. Northern Tissue Paper Mill, 135 Wis. 157,114 N.W. 841, 15 L.R.A., N.S., 701.)
It is a well-established fact, governed by settled physical laws, that a conduit for conveying water cannot deliver an amount beyond its carrying capacity. It is true that the capacity of any pipe or conduit for conveying water, particularly an open canal, is subject to physical laws which greatly affect its carrying capacity, such as velocity, the coefficient of friction, and other elements which enter into the question, but it is fairly well settled in the scientific world that the capacity of a ditch may be determined with reasonable certainty by competent engineers, and that was attempted to be done in the instant case by both parties to the action. While the estimates of the engineers as to the carrying capacity of respondent's canal varied to a considerable extent, this is usual and perhaps always to be expected where a canal has been constructed under the conditions and in the manner this canal appears to have been built. When, however, the capacity of a canal has been calculated by engineers who have shown competency, efficiency and experience in this class of work, and from the testimony of all of them, including those who made measurements for respondent, it is clear that it has never had the capacity to carry the maximum amount of water claimed by respondent and decreed to it in 1909, and from the whole *Page 57 record it is clear that this excess has not been diverted and applied to a beneficial use by respondent, it is subject to the rights of subsequent appropriators under the Frost decree, upon their showing that they have so applied this excess.
The location of the measuring device installed by the witness Harkinson, by which the witness Mizer estimated the capacity of the ditch, is not certain, but it must have been at or near the intake, and between that and the spillway. The evidence that the ditch had a capacity of more than 6,000 inches at that point does not conflict with the evidence as to its smaller capacity at the other points where the engineers made their measurements.
For the reasons here stated, the cause is reversed and remanded, with instructions to the trial court to set aside its judgment heretofore made and entered in said cause, and to adjudge and decree that all right, title and interest of the respondent in and to the water of Big Wood River in excess of 3,863 inches has been abandoned and forfeited by said respondent. Neither party to recover any costs.
McCarthy, C.J., concurs.
Budge, J., concurs in the conclusion reached.
Dunn, J., dissents.
(December 12, 1924.) ON PETITION FOR REHEARING.