I concur in the order reversing the decree and granting a new trial. But I do not think it proper to indicate at this time that the claims of respondents to the use of water during the winter season should be disallowed entirely, or held to be inferior to the rights of appellant under its later appropriations. If respondents have any rights at all, under the evidence, such rights are superior to the rights of appellant to the winter flow of the stream. The quantities of water heretofore taken by respondents in the winter time have been grossly excessive and the manner and method of applying it on their lands wasteful and unreasonable. Such diversion and use do not constitute a valid appropriation of the quantity of water actually diverted, but I think such diversion and use, although excessive and wasteful, do form the basis for the legal right to divert and use whatever quantity of water may be found to be necessary to the use when economically applied. In other words, the claims of respondents should be subjected to the rule of necessity and economy, and within that rule be upheld.
The excessive and wasteful diversion and use of the waters in controversy occurred when there were no others claiming the right to the use of the waters, hence no one was prejudiced or injured.
The early appropriations of water in this western country *Page 46 were often made in a rude and informal manner. It was but natural for the first appropriator to divert water in excess of his actual needs, and to apply it on his lands by that method which cost him the least labor and money. But his excessive diversion and wasteful use did not destroy his legal right entirely. His actual diversion and use perfected a legal right to the use of whatever quantity of water was necessary and reasonable for his purpose, when economically used. A subsequent claimant could not defeat the right — he could only insist upon the elimination of the excess and waste. The claim of the right to use water for irrigating lands in the winter time, in this climate, is unusual and extraordinary. But it cannot be said as a matter of law that such a use is not beneficial. In view of the opposing claim of appellant for storage purposes, a right for irrigation in the winter time should not be decreed, except upon clear proof of its necessity, and beneficial character. And in determining the quantity to be so used, if any is found necessary, regard must be given to the claims of others, to the end that the largest reasonable use of the whole supply may be had. It may be that the application of a reasonable quantity of water upon respondents' lands at a period previous to the growing season might be necessary and beneficial; but the claim that lands must be irrigated all winter long, in order to produce a favorable condition for growing crops the ensuing season, would be unreasonable and could not be sustained.