Dissenting. — This action was brought in the court below to restrain the defendants from the use of any of the waters of a stream in Quigley gulch, on the east side of Wood river, and near the city of Hailey. The plaintiffs sue jointly, as prior appropriators of the water of that stream for agricultural purposes. The defendants are occupants of lands lying above the plaintiffs’ on that stream, and through which lands of the defendants the stream runs. Judgment was given for the plaintiffs, declaring them jointly to be the absolute “owners of, and entitled to the use of, all the waters flowing in Quigley gulch,” without reference to its amount, or to the purposes for which it was diverted, or owned by them, or is to be used; and the defendants are, and each of them is, enjoined from diverting or using any of the waters of said stream; and for costs against the defendants, in the sum of $270. There was no motion for a new trial, and no statement of the ease made, and the case coinés up upon the judgment-roE alone. It is claimed that the judgment-roll discloses errors for which the judgment should be reversed, and *758that the judgment in itself is erroneous, in declaring the plaintiffs the exclusive owners of all the waters of the stream, and restraining the defendants from any use thereof, '‘notwithstanding it discloses that the water flows through the lands of the defendant Earhart.”
I shall attend, flrstly, to the first point made — namely, that the judgment-roll discloses errors for which the judgment should be reversed. A liberal construction of the complaint may, perhaps, warrant the findings of fact made by the court, though it goes no further than that. It claims that the stream carries one hundred and fourteen inches of water. The findings of fact are as follows: "1. In the autumn of the year 1879, William G. Quigley located a piece of government land near the mouth of Quigley gulch, in the Wood River valley, in the county of Alturas and territory of Idaho. The land being then unsurveyed public domain, he was at that time unable to purchase the same from the United States, but afterward, upon the same being surveyed and coming in the market, he and the plaintiff Drake, to whom Quigley had sold a part of the lands originally claimed by him, entered the same at the United States land office at Hailey and afterward took patents therefor. In said year 1879 said Quigley took out of Quigley creek, a stream flowing in said gulch, by a ditch built by him upon said land, all the waters flowing therein, and caused the same to flow upon a portion of said land, and in the same year built a house, and continued to reside on said land from that time until the commencement of this action. At the time of appropriation of said water as aforesaid, said Quigley posted a notice at the point of diversion of said water in which he claimed six hundred inches of the water of said stream for agricultural purposes; that said stream carries one hundred and fifty inches of water. 2. Afterward, and before the commencement of this action, the plaintiff Drake succeeded to one-half of all the waters claimed and owned by said Quigley, and the plaintiff Covert succeeded to the other half thereof; and said plaintiffs, Drake and Covert, and said Quigley continued, except for the trespass and unlawful diversions of said water by the defendants hereinafter mentioned, to uninterruptedly use the waters of said stream for agricultural purposes upon *759the land before mentioned. 3. That some time in the year 188 — , before the commencement of this action, plaintiffs Drake and Quigley sold a small quantity of said water to the Oregon Short Line Kailway Company for a water supply at its station at Hailey. 4. At several times since the year 1881, parties not connected with this suit have, for the purpose of supplying certain brickyards situate near said stream, taken small quantities of the water thereof to supply brickyards for short periods of time, in some instances with the consent of Quigley, while he was an owner thereof, and at other times without the consent of any one of the plaintiffs. 5. The defendant occupies a several and distinct piece of land above the point of diversion by plaintiffs, and the lands owned by them, through which lands of defendants said stream flows in its natural channel. 6. That defendants, and each of them, have . taken out of said stream, at various times, quantities of water in ditches constructed by them and their predecessors, and used the same for irrigating their lands, to which use the plaintiffs have objected and defendants have at all times been informed of and have known that plaintiffs asserted title to all the water flowing in said stream; and plaintiffs have many times torn out the dams constructed by defendants, and turned the water from their ditches back into the stream, and caused the water •to flow down into the plaintiffs’ ditches, and upon their lands. . 7. "None of the defendants have been in the actual adverse possession of the water of said stream, nor of any part thereof, for the period of five years next before the commencement of this suit. 8. None of the defendants at any time ever posted any notice claiming any of the waters of said stream, nor did they, or any of them, comply, or attempt to comply with any of the provisions of the act of the Idaho legislature of February 10, 1881, in relation to water rights, with a view to acquire the right to the use of any of the waters of said stream. 9. Irrigation is necessary to the proper cultivation and the raising of crops upon the lands of all the parties to this action, and all the waters of said stream are required for the irrigation of Ihe lands of the plaintiffs.”
These are all of the findings of fact. No custom as to the use of water is alleged or found, and the appellant contends *760that these facts are insufficient to sustain a judgment for the plaintiffs. He sajrs that custom, and custom alone, where right exists to use water for irrigating purposes on the public domain, must be shown as the basis of that right; that it must be alleged and shown, and, of course, must be found. That is the law. Custom is indispensable to the plaintiffs’ right. Such right is -founded on custom and user. (14 U. S. Stats, at Large, p. 253, see. 9; Basey v. Gallagher, 20 Wall. 683.) But nothing of the kind exists here. We might go no further,- and, resting on this, the judgment is not sustained. But the counsel goes further. He insists that the respondents, and each of them, fails to show that he has, or ever had, lands to irrigate requiring six hundred inches of water, or any other amount. The court seems to have properly assumed that the right to divert water for agricultural purposes depends upon having some parcel of land to irrigate. Such is, unquestionably, the law. The decisions of the court are uniform on that point; also the statutes of Idaho (chapter 1, title 9). Covert does not seem to have had any land at any time. Quigley in 1879 is found to have occupied “a piece” somewhere at or near the mouth of the gulch, but there is no intimation as to how much — whether one acre or one hundred acres; nor is there any definite location or description of it. Water was conducted onto “a part” of this “piece”; but whether upon that part which Quigley sold to Drake, and which Drake got a patent for, or upon that which Quigley retained, does not appear. At the same time, Drake and Quigley appear to have held their lands in severalty. Drake entered his land, whatever it was, at the land office after 1879, presumably after the act of February 10, 1881; but, whenever it was, he is not shown to have been in the use of any waters at that time. After such purchase from the United States, the lands were not government domain, but any considerable appropriation of water by him must have been under the statute of Idaho. He did nothing, under that statute or otherwise, at any time, tending to constitute an appropriation by him. Neither did Covert.
In the second finding it is said that at some time not specified “Drake succeeded to ‘one-half’ of all the waters claimed *761and owned by Quigley, and the plaintiff Covert succeeded to the other half.” By what means they “succeeded,” whether by abandonment by Quigley and reappropriation by' Drake and Covert, or by sale by Quigley to them, of the lands on which the water was used, or by sale of the water alone, does not appear. Presumably, if such be the fact, it should have been by lawful claim by them for irrigating agricultural lands; and no such act of appropriation was done by either. But, whether Quigley devested himself of his assumed right by abandonment or otherwise, it is certain that Quigley had nothing remaining from the time Drake and Covert succeeded, one to “one-half” and the other “to the other half,” of his rights. His interest was ended. He is out of the case, and yet the judgment is in his favor. As neither Drake nor Covert are in any way shown to have had at any time any interest whatever in, or right to use, this water, or any part of it, for agricultural or for any other purpose, all of the plaintiffs are out of court; and yet the judgment is in favor of all of them jointly. It is therefore impossible, in this case, to reach what might otherwise be the principal and more important question involved in the judgment — namely, whether such a claim as the plaintiffs made to absolute ownership for agricultural purposes of the waters of a natural stream of the country, to the entire exclusion of all other settlers on the same stream, whose lands require irrigation, and to whom water is one of the necessaries of life, and through whose lands that stream may run, can, under our laws, be maintained. The facts found not being sufficient to sustain the conclusions of law or judgment, it follows that the judgment as to the appellant should be reversed.
There is no room for any presumption that other prerequisites to a valid judgment existed. Indeed, it is shown affirmatively that the necessary grounds did not exist. Here, then, I think this ease should end. What may be further said on the question of rights of parties diverting water upon lands for purposes of irrigation can have no binding force. There is no case before the court warranting a discussion of the subject. Such discussion may be taken as obiter, merely. But the majority opinion goes into it, and I may be excused for follow*762ing its example, so far as the little time allowed me will permit.
1. The assumptions, in the majority opinion, of facts as drawn from the findings, or as properly dedueible from those findings, I, for the most part, controvert. The findings of fact are hereinbefore stated in full, and they speak for themselves.
2. Nor do I admit that posting a notice on a stream, prior .to 1881, claiming six hundred inches of water, was “an act of appropriation.” It had nothing to do with “an act of appropriation on the public domain.” That could only be done on the public domain by having lands to irrigate; second, by actually diverting waters upon it, by means sufficient to conduct all the water actually appropriated. There is nothing of that kind in this case, and the court is not warranted in assuming that there is.
3. The majority opinion pronounces the claim of a person whose lands lie upon a stream as resting on the “phantom of riparian rights.” I deny that under the laws of this territory '‘"riparian rights” are a “phantom,” unless unlawfully and unjustly made so. The doctrine of riparian rights is a part of the common law; and the common law is the law of this territory, except as the statute steps in, and repeals or changes it. Section 18 of the Revised Statutes so declares. It provides that “the common law of England, so far as it is not repugnant to or inconsistent with the constitution or laws of the United States, in all cases not provided for in these Revised Statutes, is the rule of decision in all the courts in this territory.” The United States statutes have in some respects modified the common-law rule of riparian rights on the public domain where customs are shown to exist, and not otherwise. Eo customs are pretended here. Indeed, all customs are studiously ignored. The statutes of the territory previous to 1881 had no provision whatever on the subject of water rights. But in 1881 what are equivalent to common-law water rights were in some respects expressly affirmed, only those rights were enlarged. Section 3180 of the Revised Statutes provides that “all persons, companies and corporations owning or claiming any lands situated on the banks or in the vicinity of any stream *763are entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.” In the preceding chapter of the statutes it is provided that by complying with certain conditions (not one of which is pretended to be complied with in this case) a party may entitle himself to superior rights in the use of water. No one denies this fact. But it nowhere provides that anyone may entitle himself to ownership of a stream, or to entirely exclude others “on the banks or in the vicinity of a stream” from some use of the water, as provided in section 3180, above quoted. Our statute is a little more comprehensive — a little stronger, in some respects, in favor of those needing water — than the common law of riparian rights; but it leaves many of those rights intact. It is wrong, then, to designate these common-law rights as a “phantom.” They are real, and the interests of our territory demand that they should be recognized.
4. By the common law, running water is not the subject of ownership. No statute of Idaho, nor of Congress, either, makes it such. By custom, when that is shown, a person in its prior use may not be disturbed in its use, providing, as Mr. Justice Field says in Basey v. Gallagher, 20 Wall. 683, the custom and claim under it are reasonable. But that is as far as it goes — as far as any statute of the "United States or of this territory goes. Our own statutes are in accord with that view. (Idaho Rev. Stats., sec. 3188.) In Basey v. Gallagher, 20 Wall. 683, Mr. Justice Field says that “in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits; for this right to water, like the right by prior occupancy, to mining ground, .... is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and to vest an absolute monopoly in a single individual.”
. What does this judgment do, but to violate every provision of the foregoing, severally, and as a whole? Is it reasonable to appropriate all the waters of a stream, even if it contains one thousand inches, or whatever it may be, to irrigate “a piece” of land, with no intimation of its description or amount? Is it *764reasonable to allow absolute and “unrestricted” ownership int water diverted for purposes of irrigation, only, to be used, as-ín this case, for sale to railroads and brickyards, or other purposes than irrigation, and still deny to others their natural,, lawful, statutory rights in any of it? Where are the “reasonable limits” of such a claim? Is such a claim in accord with “the conditions of the country and necessities of the people,”" when those people are famishing for water, and precluded from using a drop, though an abundance runs past their doors? Does not this judgment establish “an absolute monopoly of the waters of this stream? Every one of these questions carries' with it its own answer. I do not propose to pursue this argument, and show that a great majority of the cases relied on te establish this doctrine of absolute ownership and exclusive monopoly in streams do not relate to the use of water for agricultural purposes at all, but that those cases relate to diversions or use for mining purposes only. That fact may be easily shown, or else that.the cases, where they relate to irrigation, are based upon mining eases. There are few of them that are not so-founded, even of those cited in the majority opinion. The doctrine of those cases would prevent the settlement upon lands depending on our natural streams, and, as in the case at bar, would drive away half or more of the settlers who have already settled there. This is not for the interest of the territory, and to allow the example of this case to obtain will prove detrimental in other ways than in decreasing our population. The suffering settlers will very soon resort to the demoralizing aid of the ever present “Winchester” or revolver. People will not tolerate snch unlawful claims; and the sooner they are abandoned, or reduced, within reasonable bounds, the better it will be for all. This judgment should be reversed.