While I agree that the court had jurisdiction to enter a decree adjudicating rights and priorities in the waters of Crab creek, I also agree with the observation made by the trial court in dismissing the action, to the effect that, on this record, the court could enter no decree in derogation of the rights of the parties as adjusted by their contract of June 9, 1924.
In his petition to the superior court initiating this proceeding, the supervisor of hydraulics alleged:
"The present proceeding includes that portion of Crab creek flowing between the outlet of Sylvan lake and the easterly limits of the town of Odessa, said portion of the creek being approximately three and one-half (3 1/2) miles in length. . . .
"The entire flow of this stream is utilized during the irrigation season to irrigate lands lying between the lake and Odessa, there being no flow in the stream during this period below the intake of the lowest ditch included in this case, either through the town or for a distance of several miles below."
It is apparent that all available waters in this reach of the stream have been put to beneficial use by the riparian owners. In fact, it was because of insufficiency of water to meet their needs that the owners entered into the rotation agreement of June 9, 1924. In view of this situation, I am of the view that there was no occasion calling for the initiation of these proceedings. But, since they were initiated and carried through *Page 646 to a report by the referee, I agree with the majority that a decree should be entered. That decree, however, should adjudicate the rights of the water users in accordance with the terms of their contract of June 9, 1924. In addition, the decree should contain provisions specifically rejecting and disapproving all findings made by the referee in derogation of the rights established by that contract.