A specific finding of the trial court that the spreader system as authorized and constructed will interfere with, lessen, and diminish the water available in the stream to satisfy prior rights of plaintiffs and has deprived them of water with which to irrigate is rejected in the majority opinion. Because of our frequently expressed reluctance to interfere with findings of fact of the trial court I have tried to be unusually careful in examining the evidence presented to the trial court, and am of the opinion that for the purposes of this appeal only the testimony of the state engineer and water division superintendent that the approved bypass would carry a minimum of twenty-two cubic feet of water per second past Scott's property and that this amount would provide adequate water to fill plaintiffs' legal requirements under their downstream appropriations was the only probative evidence in the last hearing before the court and that plaintiffs failed to present any evidence to the court justifying their claim that their rights were injured.
Plaintiffs' counsel in his brief expressly declines to review the evidence pertaining to their alleged injury, giving as his reason the fact that findings similar to the one under attack were contained in the judgment of September 5, 1967. Conceding that this is so and with no reason to conclude that it was not justified under the evidence then before the court, I am of the opinion that both the plaintiffs and the lower court erroneously consider the 1967 judgment and subsequent orders entered prior to the issuance of a permit by the state engineer as either res adjudicata or the law of the case establishing as incontrovertible and for all time that any bypass or other system which will not insure the continued downstream flow of at least 40cfs1 (to the extent available in the stream) will deprive the plaintiffs of water to which they are legally entitled and thereby injure them in the operation of their irrigation systems. Thus the plaintiffs state one of the issues in the appeal to be whether plaintiffs may take all the water in the creek to satisfy their rights and assert in support of their position that the 1967 decree
"found that a channel of 40 c.f.s. of water capacity was needed to supply the downstream prior appropriations of Appellees. The Judgment of September 5, 1967 states that fact. So does the Order of August 2, 1968 * * *."
I do not think that this is the case and believe that both plaintiffs and the judge who issued the second injunction have misinterpreted the first ruling of the court. As I see it, the earlier judgment and orders proceed from the basic premise that Scott, having made no application for permit to divert water from an adjudicated stream, was an interloper. Therefore, unless and until he had restored the stream to a condition as nearly as possible the same as it had been before his interference, and to a condition which would permit the passage of all the natural flow of the stream, he was in violation of the law, subject to injunction and to citation for contempt for failure to comply with the injunction. As a basic prerequisite to the issuance of an injunction at the instance of plaintiffs it was necessary to determine that they had been specially injured by deprivation of water to which they were legally entitled. Such determination was made, but since Scott was at that time completely without right to interfere with the flow of the stream the degree to which his acts interfered with plaintiffs' rights and the exact amount of water which had to be permitted to pass Scott's irrigation works were of no importance and were not determined by that judgment. It was not the purpose *Page 157 of the court to initiate its own plan which would permit Scott to take water since that was something within the exclusive jurisdiction of the water officials of the state, and he was therefore specifically and unconditionally enjoined to restore the former condition of the stream.
The court, however, clearly recognized the possibility of inviting and did invite Scott to initiate a water right in the legal manner by applying for a permit, subject only to the provision that such action should be accomplished in such a way that the plaintiffs, as prior appropriators, would not be injured in their prior right to use water from the stream. Scott followed this suggestion and applied for permit to take water from the stream for the irrigation of 68.79 acres of land, which at the statutory duty of water expressed in the state engineer's endorsement of approval of the permit, would limit the appropriation to .983cfs.2
When, therefore, the matter came on for hearing upon the plaintiffs' subsequent complaint that they were being illegally deprived of water, an entirely new situation was presented. What had been completely illegal at the first trial was now legal, subject only to the continuing limitation that an appropriation under the aegis of the state engineer still had to be accomplished so as to protect the valuable and vested rights of the prior appropriators. The mere issuance of the permit and approval of the plans for irrigation works did not place an invulnerable shield about Scott's acts; any prior appropriator who established that he was injured by the junior appropriation would still be able to object.
I do not think that the opinions of the state engineer and the superintendent that permitting 22cfs of water to pass the Scott lands would assure the filling of plaintiffs' legal rights necessarily establish that as fact. I consider the testimony largely theoretical and not supported by any practical investigations or tests.3 In fact, an affidavit submitted by the state engineer to the trial court while compliance with the first injunction was still being sought stated that a temporary permit then requested by Scott would be conditioned that if in actual practice the arrangement outlined (which appears to have been substantially the same as the one eventually approved by him) should prove unsatisfactory or interfere with the rights of downstream users, any necessary modifications to rectify those problems would be required to be installed. This would appear to me to provide the plaintiffs with all the protection to which they are entitled, and while the statement was not included in the permit actually issued I believe it is a necessary if implicit condition in the permit. I do not construe the majority opinion as placing our irrevocable seal of approval upon the plan as set forth and approved, thereby giving to Scott the unalterable right to operate his irrigation works in the manner now provided, but only as holding in favor of Scott on the particular facts presented. With this understanding of the effect of the decision I concur that the judgment of the trial court must be reversed.