ON PETITION FOR REHEARING.
SULLIVAN, J.A petition for rehearing has been filed in this case and counsel contends that the trial court failed to find on certain material issues, and that this court failed to grasp the points contended for in the brief as well as in the oral argument of counsel.
It is contended that all of the water of Montpelier creek was appropriated for useful purposes in 1864, and was so decreed by the district court of Bear Lake county, and that the city of Montpelier had purchased 128 shares of stock of the Montpelier Canal Co., which, company was the owner of all of the waters of said creek under said decree, and for that reason the city of Montpelier was entitled to the number of inches of water represented by said shares of stock, and was entitled to take the same out of said stream at any place or point where it desired to do so.
The record shows that for more than fifteen years prior to the commencement of this action the milling company had diverted a certain part of the water of said stream and had constantly used it for the purpose of running its mill and returned it to the stream below the mill and above the point where the city and said canal company had been diverting said water for other purposes. The city in 1908 established a system of waterworks and diverted the water from said stream above the point where the milling company had been diverting water therefrom for the purpose of running said mill.
On that state of facts, even though the city had a prior right to the use of said water, it had no right or authority to change the point of diversion farther up the stream if the milling company would be injured by such change. One having a prior right to the use of water cannot change the place of diversion if others are injured by such change. (See. 3247, Rev. Codes.)
*225The real question involved in this ease is whether the city had the right to change the point of diversion of the water claimed by it to the injury of the milling company. The decision of the trial court was to the effect that it could not. That being a correct conclusion, it would matter not what the findings of the trial court were upon the points raised by counsel in their petition for a rehearing. A rehearing must be denied, and it is so ordered.
Ailshie, J., concurs.