This was a suit by W. H. Lee, who owned 320 acres of land riparian to the Pecos river in Ward county, against the appellants to enjoin a diversion of water from the river through an irrigation system owned by appellants. It resulted in a decree absolutely enjoining the appellants from taking any water to nonriparian lands under their system, except when the river is in flood and overflowing its bank at appellee's land, which is 25 to 30 miles below by the river, and at which point the banks are 14 to 15 feet high. The answer of the appellants, on which the trial was had, alleged that there was located on the Pecos river, between the appellants' dam and appellee's land, a public service irrigation system known as the "Barstow System," which diverts more water than does appellants' system, and that because thereof the amount of the flow of the stream at any time taken by appellants does not interfere with or appreciably affect the natural flow past appellee's land.
There are 19 assignments of error, which present in varying forms a number of difficult questions. (a) The question is presented whether the appellee, the owner of riparian land, could enjoin the appellants from diverting the water to nonriparian lands unless in good faith he intended and needed to use the water on his riparian land and appellants' use was preventing him from so doing; (b) whether or not the Barstow Irrigation Company, the intermediate appropriator, is a necessary or proper party; (c) whether or not there could be an estoppel as against the right of the riparian owner; (d) whether or not the court erred in not making his findings of fact complete to cover all the questions raised in the case; and (e) that the judgment herein is so indefinite and uncertain that it is impracticable and impossible to observe it or enforce it. These 18 assignments of error have been compared by us with the original assignments in the transcript. The only one which is a copy is the seventeenth assignment of error, and for that reason we shall decline to consider any assignment except the seventeenth. *Page 710
The seventeenth assignment of error is addressed to the form of the court's judgment, and should, we think, be sustained. It is apparent that, conceding that the riparian owner is first entitled to the use, the only right he has is to use sufficient water to irrigate his land. As to any excess water which there may be, he has no rights of any sort against appellants. It is apparent therefore that the court's judgment, which, in effect, declares that the riparian owner has the right, without disturbance, to have flow past his land a volume of water 10 or 15 feet deep, must necessarily be erroneous.
It is equally true that the court's decree should be certain and definite. Having established the normal flow of the Pecos river, and having established the amount of water reasonably necessary for the riparian lands, in the event it should be found that the riparian owner, under the circumstances here present, has the preference right (as to which we express no opinion), the decree should then adjudicate that he have from said flow water reasonably sufficient to irrigate his land. In so far as the excess water is concerned, he has no right of action against an upper statutory appropriator, and thus far the judgment is fundamentally erroneous. See Biggs v. Miller, 147 S.W. 632, just decided by this court.
Although, for the reason stated, we have declined to consider any other assignment of error, for the guidance of the court below, we think it not improper to state that we are of the opinion that while the intermediate appropriator, the Barstow Company, was not a necessary party in the sense that it was an indispensable party, yet clearly the appellant had the right, if it desired, to make it a party, and it also had the right to prove, if it could, that their diversion of the water was the proximate cause of plaintiff's loss of the use of water on his land, if any, and to make certain and definite these amounts.
The question whether plaintiff, as riparian owner, could enjoin an upper statutory appropriator, if he himself were not needing and intending, in good faith, to use the water on his land, is one which we expressly refuse to consider or decide at this time. We suggest further, however, that the court's conclusions of fact and law should cover fully every issue arising in the case.
For the reasons indicated, the case is reversed and remanded.
McKENZIE, J., disqualified and not sitting.