I concur. In my opinion the facts of this case do not bring it within the principles laid down by Mr. Wiel or any of the cases cited in support of the contention pertaining to a situation growing out of the diversion of the entire flow of water from a natural stream.
I concur in the order of reversal for the further reason that the trial court, in my opinion, erred in entering a decree awarding to the plaintiff the amount of water designated for the entire irrigation season.
Peter Organ testified that his people bought the ranch in 1869, and that he lived upon it continuously thereafter until he sold to the defendant in 1918, and that for many years antecedent to plaintiff's advent in the country he had appropriated all of the water of Star Canyon creek for irrigation purposes, and that as a rule there was not enough water in the creek in the months of July and August to irrigate his lands. He further testified that he had had under cultivation for years all of the land cultivated by the defendant after she purchased it. He did admit, however, that for a period all of the land was not cultivated or irrigated by him. Nonuser of water, once appropriated, does not per se constitute abandonment. Abandonment must be proven, and there is no contention that there was an abandonment.
John Ryan and Ed Ryan, sons of the defendant, also testified that no land had been cultivated by the defendant except what had been under cultivation by Organ, and that during the months of July and August there was not enough water in the stream to irrigate their crops.
The testimony of J.A. Miller, an engineer, and others, *Page 349 shows that the water is highest in April and May, and that it decreases in volume very rapidly as the summer season advances. There is no conflict of the testimony, as I read it, to the effect that there is not enough water in the stream in July and August to irrigate the cultivated lands of the defendant.
I think it is true that there is a larger volume of water in the stream in April and May, and possibly during a portion of June, than the defendant can economically use, but the waste water from defendant's ranches during those months did not form a natural stream, or any other kind of a stream, until plaintiff ran some ditches about the year 1913, or thereafter, to catch this water.
I can see no theory upon which the judgment and decree can be affirmed.