— This action was brought to determine the priorities and amount of water to which each of the parties to the action was entitled, from Sinker creek, in Owyhee county. The defendants, except Jacob Rubin and G. F. Lambert, appeared by answer and cross-complaint and set up their respective claims and rights therein. The defendant Harder did not answer the cross-complaint of the defendant, the Murphy Land & Irrigation Co. Thereupon the case was referred to a referee to take the testimony in the ease and report the same to the court. It appears that certain testimony was taken and the case was closed and a report made by the referee to the court. Subsequently an application was filed to reopen the case and take further testimony, which" application was granted. Further testimony was taken before Honorable John F. MacLane, one of the judges, sitting at Chambers, and after the testimony was closed, was referred to Honorable Alfred Budge, judge of the sixth judicial distract, for decision, and on April 1, 1912, he filed his findings of fact and conclusions of law and a decree of the court was entered thereon.
The court decreed to the plaintiffs Matthew and Anna Joyce 597.4 miner’s inches, or 11.95 cubic feet of water per second of time, from April 1, 1867, and 30 inches, or 6/10 cubic feet, from April 1, 1876, for use on the Gilmore ranch, and 35 inches, or 7/10 cubic feet, dating from April 1, 1901; to the defendant Ella C. Harder, administratrix, 62.5 inches, or 1.25 cubic feet per second, from April 1, 1867, and 118.60 inches, or 2 -3/7 cubic feet per second, from April 1, 1871; to the defendants Richard and Joseph Bennett 12.2 cubic feet from the following dates: 400 inches, or 8 cubic feet per second, from April 1, 1881; 210 inches, or 4.2 cubic feet per second, from April 1, 1892; to the defendant the Murphy Land & Irrigation Co., 400 second feet of the waters of said creek, from December 26, 1906, and 60 inches, or 1.2 cubic *303feet per second, from the year 1865, and 20 inches, or .40 cubic feet per second, dating from April 1, 1865.
None of the parties appealed except the Murphy Land & Irrigation Co., and the appeal is from the judgment.
(1) The first alleged error complained of is that the court erred in ordering all of the pleadings to be amended to conform to the facts as shown by the evidence. It must be remembered that a suit to determine the priority and amount of water that each user from a stream is entitled to is somewhat different from the ordinary action, and the general rules of pleading have never been technically observed or strictly enforced in this class of cases, for if they were, in many cases where there are a hundred or more parties to the action the pleadings would be very voluminous. In such actions the main object or purpose is to determine the priority and amount of water to which each party to the action is entitled, and it is left to the court to determine from the evidence whether each party has established a right to any of the water in litigation. Each party to the action is required to plead the ultimate facts upon which he claims a right to the use of a portion of the water of such stream. It is the duty of the court to hear proof before it can legally make its findings or enter its decree. It is not made to appear that the issues were greatly changed under said order of the court, or that any additional testimony would be required to meet such amendments. The record fails to show that any evidence was objected to by appellant as being at variance with the pleadings, or as not being within the issues made by the pleadings. The record shows that the trial was conducted as is customary in water suits, upon the theory that each party submitted to the court evidence of the dates of his appropriation and amount of water claimed and his right and title to use it.
It is provided by sec. 4225, Rev. Codes, that no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. And in sec. 4226, Rev. Codes, it is provided that when the variance is not material, the *304the fact to be found according to the evidence or may order an immediate amendment.
In Conant v. Jones, 3 Ida. 606, 32 Pac. 250, it is held that when a cross-complaint is not answered and defendant proceeds to trial. as though answer had been filed, he thereby waives the answer. It appears from the record that the appellant went to trial evidently upon the theory that the allegations of his cross-complaint were denied. The record fails to show that the appellant moved for judgment on its cross-complaint, and does show that appellant went to trial and introduced its proofs for the purpose of establishing the allegations of its cross-complaint. The case was evidently tried upon the theory that all of the material allegations of the complaint and cross-complaint were put in issue. The provisions of subd. 2, sec. 4306, Rev. Codes, provides for default upon failure to answer in a case not arising upon contract. In that kind of a ease the plaintiff, after taking default, must apply to the court for the relief demanded in the complaint; in other words, must establish by proof the material allegations of his complaint. As bearing upon the question here under consideration, see Myers v. Holton, 9 Cal. App. 114, 98 Pac. 197; Stiles v. Hermosa etc. Co., 8 Cal. App. 352, 97 Pac. 91; Hedstrom v. Union Trust Co., 7 Cal. App. 278, 94 Pac. 386.
The court therefore, did not err in directing the pleadings to be amended in accordance with the proofs offered.
(2) The second error complained of is that the answer of the cross-complainants Bennett and Bennett does not deny the allegations contained in the cross-complaint of the appellant. It is contended that the answer to the cross-complaint of the appellant amounts to-no defense whatever, and would entitle the appellant to judgment on the pleadings, and that such question would not be waived by failure to raise it in the lower court.
In a water ease like the one at bar, the court would not be justified in entering a judgment in accordance with the prayer of the complaint without requiring the plaintiff to prove his case. Appellant in its cross-complaint was not content with setting up its own title .or right to the use of the water of *305Sinker creek, but undertook to set up the title of all water users along the creek, and as to all of such allegations except the paragraph setting up the claim of the Bennetts, the Bennetts answered as follows: “As to the allegations contained in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 of said cross-complaint, these answering defendants have no knowledge, information or belief on the subject sufficient to enable them to answer the allegations contained in said paragraphs or any of them, and placing their denials on that ground these answering defendants deny each and every of the allegations contained in said paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14.” We think that denial is sufficient under the requirements of our statute. (See. 4183, Rev. Codes.)
California has a similar statute, and in Etchas v. Orena, 121 Cal. 270, 53 Pac. 798, the court had under consideration the question here presented, and held in accordance with the views herein expressed.
There is another reason why appellant cannot at this time be held to question the sufficiency of the respondents’ answer. The case was tried upon the theory that the denials were sufficient to put each appropriator upon his proof as to his right to divert water from said creek, both as to priority and quantity, and no evidence was objected to during the trial on the ground that such evidence was not within the issues made by the pleadings. (See Loftus v. Fischer, 106 Cal. 616, 39 Pac. 1064; 3 Am. & Eng. Eney. of L. & Pr. 1357.) We think the answer of the Bennetts was sufficient.
(3) The third assigned error is that by the cross-complaint filed by the Bennetts it is alleged that it requires three inches of water per acre to irrigate the land of the Bennetts. It is contended that the court found as a fact that the Bennetts had under cultivation and irrigation a total of 162.65 acres of land, for which the court found they were entitled to water, and at the rate of three inches per acre, which they admitted in their cross-complaint was sufficient to irrigate the same, the court should have given them 488 inches of water and no more, but that the decree gave them 610 inches, or 122 inches more than they asked for in their cross-complaint. The court evi*306dently concluded that the Bennetts had made a mistake in their cross-complaint in claiming only three inches of water per acre, as their evidence showed it required more than that to irrigate said land, and authorized them to amend their complaint to conform to the evidence, and thereafter awarded them the amount of water with the date of priority to which the evidence showed they were entitled. The court did not err in so doing.
(4) Under the fourth assignment of error it appears that the Bennetts posted water right notices on the first day of June, 1889, under which 1,000 inches of water was claimed for the irrigation of said Bennett ranch. The evidence shows that ditches for the conveyance of such water had been constructed years before the posting of said notices, and that water had been conducted through them from year to year up to the time of posting such notices, and after a patent from the government to said lands had been procured said water right notices were posted simply to give a record title, or to indicate on the county records that the Bennetts claimed a water right from said creek. The posting of such notices in no way deprived them of the date of priority to which they were entitled under their actual appropriation of such water. It appears from the evidence that the cultivated area of the Bennett ranch was increased from year to year, and that they were entitled to the amount of water awarded them by the court.
(5) It is contended under the fifth error assigned that while the grantors of the Bennetts had acquired rights to the use of the waters of Sinker creek, said rights were abandoned by the Bennetts when in 1907 they changed the point of diversion by taking the water out of the stream about 1,800 feet farther up the stream than the point at which water had been at first diverted. This contention is without merit, for under the law they had a right to change their point of diversion so long as it did not injure any other water user. Under the provisions of sec. 3247, Rev. Codes, a person entitled to the use of water may change the point of diversion if others are not injured by such change, and if a change is made without proper application to the state engineer, as claimed in this *307case, that would not forfeit the right to the use of such water.
(6) It is contended under the sixth assignment of error that the appellant alleged in its cross-complaint that it required only five-eighths of an inch of water per acre to irrigate the Harder ranch, and that no answer was filed by Harder, as administratrix, to the cross-complaint of appellant, and for that reason said allegation of the cross-complaint was admitted. As heretofore held, this case was tried upon the theory that each of the parties was required to establish the date of his priority and the amount of water required for the irrigation of the land. Harder alleged in her cross-complaint that it required 400 inches of water to properly irrigate her land. That allegation put in issue the amount required, regardless of appellant’s allegation in its cross-complaint that it required only five-eigths of an inch per acre. The evidence sustains the finding of the court to the effect that the Harder land required two and one-half inches of water to successfully irrigate it.
(7) The assignments of error from 7 to 12, inclusive, concern the rights of respondents Matthew and Anna Joyce. It is first contended that there is an admission in the pleadings on behalf of said respondents as to the amount of water required to successfully irrigate the Joyce ranch, in that said respondents alleged that all of the land of the Joyce ranch requires “at least three inches of water to the acre.” An inspection of the pleadings shows that the respondents Joyce claimed 1,500 inches of water to be used upon 480 acres of land. Much of the land claimed by them is farther away from the creek than the land to which water has been actually applied, and, as the evidence shows, less gravelly and less porous, .and because three inches of water per acre would be sufficient to irrigate the entire tract, it does not follow it would not require more than that to properly irrigate the more porous land nearer the creek. It might be well to observe here that •the appellant has alleged that certain lands of the respondents require only a certain quantity of water, but in the answer and cross-complaint of the respondents they allege the quantities of water required for their lands. Where it is alleged in the cross-complaint that certain lands require only five-*308eighths of an inch of water and it is averred in the eross-eomplaint of the respondents that it requires three inches per acre, an issue is clearly presented although no negative words may be used. (See Perkins v. Brock, 80 Cal. 320, 22 Pac. 194.) The ultimate fact to be proved was the amount of water the respondents were entitled to divert, respondents claiming that they were entitled to divert a certain amount of water and the cross-complaint averring that they were not entitled to that amount. The respondents in their complaint had already set up their right and title to water which the appellant had denied in its answer. The only averments material to be made in its cross-complaint were as to its own right and title, and it was not required to set up the right and title of the plaintiffs. Immaterial averments in a pleading need not be denied, and are not admitted by failure to deny them. (1 Ency. PL & Pr. 791, and eases there cited.) A sufficient answer to said assignment is that the case was tried upon the issue as to the amount of water necessary to irrigate the Joyce ranch. That there was a wide discrepancy between the amount claimed by the plaintiffs and the amount conceded by appellant is true. The plaintiffs asked for 1,500 inches of water for 480 acres of land — about three inches per acre— and the court decreed them 597.40 inches for the irrigation of 119,48 acres, which we think under the evidence the court was justified in doing, as the evidence shows it requires much more water -per acre to irrigate the 119.48 acres close to the creek than it does the land farther away.
(8) The point raised by the eighth assignment of error is that there is an admission in the pleadings to the effect that the plaintiffs did not jointly own the land to which the water is applied, but that Anna Joyce owns a certain portion and that Matthew Joyce owns the remaining portion, and that the court erred in decreeing water for the Joyce ranch as a whole; that it should have segregated the portions of said ranch alleged to be owned by the different parties and apportioned the water between them. Under the facts of the case, this contention is somewhat technical. The Joyce respondents asked in their complaint to have the water de*309creed to them jointly, they being the owners oí the Joyce ranch. The testimony throughout refers to said tract of land as the Joyce ranch. The appropriation was made for the entire ranch of Matthew.Joyce, Sr., which subsequently descended to the plaintiffs, and has always been farmed together, and is now in the possession and under the control of both the plaintiffs and their lessee, and the record contains a stipulation of the parties to this action as follows: “It is further stipulated and agreed by the parties to this action that the lands described in the several complaints and cross-complaints are the properties of the parties alleging title thereto. ’ ’ Upon the whole record we conclude there is no merit in this contention. The water was. appropriated for said entire ranch and has always been used on that ranch, and it does not appear that anyone is injured by decreeing said water jointly to the owners of said ranch.
(9) Under the ninth assignment of error it is contended that the court should have taken into consideration the springs that rise either in the bed of the stream or along its sides. The court evidently considered those springs as a part of the stream. It was expressly found by the court “that it appears that there is a certain spring in Sinker creek where the same flows through the Joyce ranch aforesaid, which is a part of the natural flow of said creek; that the waters of said spring when used and diverted by plaintiffs is a part of said waters so given to the land of plaintiffs. ” It is clear from the' finding that the respondents Joyce are not entitled to the water flowing from said spring in addition to the water decreed to them, but that the amount of the flow of said spring must be deducted from the total number of inches of water awarded to the respondents Joyce. They are not entitled to the number of inches awarded to them at the head of their ditch and in addition thereto the flow of said spring. They are entitled only to the amount awarded to them at the head of their ditch less the flow of said spring. From the record it appears they have about 50 acres of land below where said spring rises, and certainly can use the water from said spring in the irriga*310tion of said land, so the decree in that regard must be amended in conformity with the views herein expressed.
(10) Under the tenth assignment of error appellant contends that while the waters of Sinker creek sink or disappear during the latter part of the season, so that during the months of July, August and September the amount of water in the stream does not exceed 200 inches, and while this appellant is constructing a reservoir for impounding the waters of said stream for the purpose of irrigating certain lands, yet the decree makes no provision for the water shortage during the summer months, and no provision has been made for measuring the waters of the stream, but allows the plaintiffs and the several cross-complainants the full amount of water' awarded to them, apparently for the entire season, which amount could only be supplied by drawing from the storage provided by the appellant for other lands, and under that state of facts it is contended that the decree should provide for measuring the waters of said stream above the dam of appellant, and when the waters are low, the respondents should be entitled only to the flow of the stream and not to exceed the amounts they are allowed by said decree. That contention is well founded, and the decree should provide that when the natural flow of the stream is not sufficient to furnish the respondents with the full amount of water awarded to them, each should have only the amount furnished from the natural flow of the stream, taking, of course, according to the priority of his right. The decree should have provided for the measuring of the water of the stream as it entered the reservoir of the appellant, and should also provide that the respondents should receive only the natural flow of said stream when it is less than the entire quantity of water awarded to them and in accordance with their priorities as established by the decree. Of course, as appellant has an eighty-inch water right with a priority of April 1, 1865, it would be entitled to that full amount as long as the natural flow of the stream amounted to eighty inches, its right being the oldest on said stream..
*311A measuring device ought also to be established at the dam of appellant, so that the water required to be turned down to the respondents could be measured. In order that justice may be done to all of the parties to this action, the decree must be modified as herein indicated.
(11) Under the eleventh assignment of error it is contended that some of the respondents have not proceeded with reasonable diligence to reclaim all of their land for which they were allowed water by the trial court, and if the land had been situated in some parts of the state where the increase in population and reclamation of land had been more rapid than in the Sinker creek region, this court would have been inclined, upon the facts appearing from the record, to hold that at least one or two of the respondents had not proceeded with reasonable diligence to reclaim their land. But under all of the facts of this case, we are inclined to hold that the court did not err in decreeing to each of the respondents the amount of water decreed to him.
(12) It is contended under the twelfth assignment of error that the respondents at most are not entitled to more than one and one-fourth inches of water per acre; but under all of the facts of this case this court is not inclined to modify the decree entered in regard to the quantity of water awarded to each of the respondents.
It is therefore ordered that the decree be amended as above indicated, and it is also ordered that each of the parties hereto pay the costs of this appeal incurred by him.
Stewart, J., concurs.