— This action is brought by the plaintiffs to enjoin the use by defendants of certain waters of Elk creek, and for damages alleged to have been sustained by plaintiff by reason of the wrongful acts of defendants in the use of such waters. The ease was tried before the court without a jury, and judgment rendered for the defendants, from which judgment, and from the order overruling a motion for a new trial, this appeal is taken.
While there are some exceptions to the admission of evidence, appellants rely mainly upon the contention that the findings are not supported by the evidence, and that the court failed to make findings upon several material issues. We do not think the latter claim is sustained by the record, and, while the evidence is conflicting, we are of the opinion that the conclusions of the •court are sustained by the evidence. The facts, as they appear from the record, and as they are found by the court, are substantially as follows: “That in 1863, the plaintiff’s grantors and predecessors in interest appropriated one hundred and twenty-five inches of water, measured under a four-inch pressure, of the waters of that certain stream in Boise county, state (then territory) of Idaho, known as ‘Elle creek’; said appropriation being made at a point about four miles above the town of Idaho City, in said county. That immediately after said appropriation, plaintiff’s grantors and predecessors in interest built a •ditch, commonly known as the Tibbits ditch,’ for the purpose of conveying said waters from said point of location and diversion, and in due time applied said water to a beneficial use, to wit, the use of placer mining, said ditch having a carrying cap*578acity of one hundred and twenty-five inches, of water measured under a four-inch pressure.” “That during the late fall and winter of 1865 and spring of 1866, the predecessors in interest of plaintiffs constructed the Dunn ditch proper, now owned by plaintiffs, and connected the same by a flume across Elk creek with said Tibbits ditch, and over a portion of the same, and enlarged the said portion of the Tibbits ditch so as to make the Dunn ditch carry five hundred inches of water under a four-inch pressure.” “That in December, 1863, the predecessors in interest of the defendants located the water right and ditch now owned by defendants, and then known as the ‘Summit ditch,’ and afterward as the ‘Channell ditch,’ which ditch was constructed during the winter of 1863 and the year 1864, and' that said ditch was constructed with a capacity of about four hundred inches of water under a four-inch pressure; and the waters of Elk creek were diverted and appropriated by means of said ditch in the year 1864; for mining purposes, by defendants’ predecessors in interest, and the defendants are now the owners and in possession of said Channell ditch.” These findings — and they are fully supported by the evidence; in fact, there is really no contention as to them — would seem to settle the question of' priority between plaintiffs and defendants; but the plaintiffs-seek to overcome their inevitable effect by showing that the predecessors in interest of the defendants have, at some time in the past, recognized a priority of right in the plaintiffs to the use' of the waters in question. Of course, evidence of this kind is largely reminiscent; but we think, taking all of the evidence together, the conclusion reached by the court was correct.
IJpon the question of damages we think the preponderance of' evidence is largely with the defendants. The claims being worked by the defendants are located some five miles from the head of plaintiffs’ ditch, and at an altitude higher than the head of plaintiffs’ ditch. The water used by defendants, after' such use, is turned into Wolfe creek, and reaches the main channel of Elk creek at a point about a mile above the head of plaintiffs’ ditch. The bed of Wolfe creek, through which the water flows for several miles before entering Elk creek, is, to* considerable extent, covered with a heavy growth of underbrush *579and the bed of Wolfe creek is flat and open for some distance immediately below the month of defendant’s ditch. It is hardly probable that any serious damage would result to plaintiffs from the mining operations of defendants. In fact, the evidence up-. on this question on the part of plaintiffs is so meager and inconclusive as to scarcely raise a presumption. •/' ~~
Plaintiffs claim in their complaint that defendants are insolvent, and unable to respond in damages, as an additional ground for injunction; but, as no proof was offered in support of the allegation, and nothing is said in the brief of counsel or in oral argument upon the point, we assume it to have been abandoned.
We might rest the decision in this case upon the fact that, the evidence being conflicting, the findings of the lower court will not be disturbed; but a careful examination of the record satisfies us that the findings are fully sustained by the evidence. We have examined the record with much care touching appellants’ claim, of adverse user, but we are unable to agree with this contention. It seems to us such a contention is at variance, not only with the allegations of appellants’ complaint, but of the whole theory of their case. Appellants allege in the ninth paragraph of their complaint that defendants’ predecessors in interest have for a period of twenty years last past always recognized and admitted the superior rights of plaintiffs and their predecessors in interest in and to the waters of said Elk creek. This is scarcely consistent with appellants’ claim of adverse user.
It was not necessary or material, under the issues in this case, for the court to determine the amount of water to which the defendants are entitled. The findings cover all the material issues in the case, and are supported by the evidence. The judgment of the district court is affirmed, with costs to respondents.
Quarles and Sullivan, «JJ., concur.