Concurring in Part and Dissenting in Part. — I concur in part with the conclusion reached in the majority opinion in this case and dissent in part. In my opinion no issue is raised by the pleadings as to the comparative cost of repair and maintenance of the canals before enlargement and afterward. It seems that the respondents are willing to pay their pro rata share of the maintenance and up-keep of the canal since the enlargement. Respondent Manville, however, denies that he should be chargeable with any portion of the cost of repairing the break for the reason that it was due to the negligence of appellant, first, in that the original enlargement in 1889 was improperly and negligently made, and, second, that the immediate cause of the break was due to the negligence of appellant in carrying a greater volume of water than could safely be diverted into the canal.
I think this is one of the cases where the appellate court should examine the evidence, not merely to determine whether there is a substantial conflict therein, but to determine whether the evidence supports the findings. This for the reason that the findings do not depend upon the question of the veracity of the witnesses, or as to who have testified truly and who falsely, but rather depend upon the inferences of fact to be drawn from the testimony. In such case the appellate court is not bound to accept the findings of the trial court, even though they are supported by substantial evidence.
In my opinion the proof does not show negligent construction of the enlargement of the canal. Negligence in such cases should be determined by the engineering standards and the usual practice in the vicinity in constructing ditches of like kind at the time of the enlargement; Judged by those standards, it would appear that the enlargement was in accordance *410with the prevailing method of construction in use in the vicinity at the time.
With reference to the alleged negligence of appellant in overloading the canal, we have opinion evidence that the depth of water carried was too great for safety; also that it had been found necessary to strengthen the bank in places along the hillside, and that when the water in the canal reached a certain depth, which depth was less than the depth of water being carried in the canal at the time of the break, seepage would appear at various places along the bank. It does not appear, however, that this evidence was directed especially to the condition of the bank at the place where the break occurred. On the contrary, we have evidence that the portion of the bank where the break occurred was the strongest on the hillside and had stood safely for twenty years after the enlargement was made, and there was nothing apparent to indicate that this particular portion of the bank was in danger at the time. So far as the break is concerned, in my view respondents failed to show that, it occurred through the negligence of the appellant.
With reference to the cement lining, respondents claim that it was construction and not repair or up-keep. In my opinion, repair, up-keep or maintenance of a canal should be considered as meaning the keeping of the canal in proper condition for the use for which it is intended. Ordinarily, the lining' of a canal with concrete would come within the definition of repair or maintenance. In this case, however, it is contended that the lining the canal with concrete was due wholly to the increased volume and velocity of the water carried through the canal by reason of the enlargement thereof, and that they derived no benefit from the concrete lining. Upon this issue the burden lay with the appellant, and it has not been met, I think, with a preponderance of the evidence.
I am of the opinion that the judgment in favor of McBirney should be affirmed, and that the judgment in favor of Man-ville should be modified to the extent that he should be *411charged with his proportionate cost of repairing the break in the canal, bnt not with any part of the expense of constructing the concrete lining.
Petition for rehearing denied.