(dissenting):
For the following reasons, I dissent.
Plaintiff seeks to enjoin defendant from using any water from the unnamed spring. In order to succeed, he must prove his right to a specified amount of water.1 Plaintiff claims his right to the water through the diligence claim of his predecessor in interest. Thus, the amount of water to which he is presently entitled cannot exceed the amount beneficially used by that predecessor.
73-5-13, U.C.A.1953, provides:
All claimants to the right to the use of water, including both surface and underground, whose rights are not represented by certificates of appropriation issued by the state engineer, by applications filed with the state engineer, by court decrees or by notice of claim heretofore filed pursuant to law, shall file notice of such claim or claims with the state engineer on forms furnished by him setting forth súch information and accompanied by súch proof as the state engineer may require
The statute further states that such notice of claim shall be prima facie evidence of the claimed right described in the notice.
The record in this case discloses no such filing on the part of the plaintiff to protect his claim. Therefore, no prima facie evidence of plaintiffs right to the water exists. Consequently, plaintiff must submit proof of the amount of water to which he has a right. In addition, there was no showing at trial as to the amount of water presently emanating from the spring. It is possible, then, that water is presently available in excess of the amount to which plaintiff is-entitled.
The case should be remanded and the plaintiff required to establish his right to a specific quantity of water. Furthermore, a hydrological study should be ordered to de*1286termine the present flow of water from the spring so it can be ascertained if there exists water in excess of the amount to which plaintiff has a right, and thus available for appropriation.
WILKINS, J., concurs in the views expressed in the dissenting opinion of MAU-GHAN, J.. Merrill v. Bishop, 74 Wyo. 298, 287 P.2d 620 (1955); Lewis v. Hanson, 124 Mont. 492, 227 P.2d 70 (1951).