ON REHEARING.
BUDGE, J.Upon the application of appellants William Ñoeppe and J. F. Carothers, a rehearing was granted in so far as their right to the nse of the waters of Brown Creek is concerned.
In the petition it is alleged inter alia that the court overlooked what these appellants consider practically positive evidence of the abandonment by the respondent and his predecessors of the waters of Brown Creek. We are satisfied that this contention is not well taken, and that the finding of the court that “Neither plaintiff nor his predecessor in interest abandoned the use of the waters of said creek nor discontinued their use for such length of time as to constitute an abandonment or forfeiture” is sustained by substantial evidence. The record shows that he diverted the waters of Brown Creek through the Cook Ditch and applied them to a beneficial use, except when prevented from so doing by the appellants. He was not required to conduct these waters through any particular ditch, and even though he may have abandoned the ditches through which he formerly conducted the waters of Brown Creek, it does not follow that he abandoned the right to their use.
The following question was propounded to counsel for appellant, viz.:
“Does the use of the water by Koeppe and Carothers from Brown Creek decrease the flow of water at the head of the Cook ditch belonging to the plaintiff!”
If neither the surface nor underflow, if undisturbed, would reach the point of diversion of the prior appropriator, his flow would not be diminished by the diversion of water above him by a junior appropriator, and he could not complain. The burden rested upon appellants to show that neither the surface nor underflow, if uninterrupted, would reach the point of diversion of respondent, the senior appropriator.
*587After a careful re-examination of the record, we have reached the conclusion that appellants have failed to meet the burden of proof in this respect. There is substantial evidence to support the finding of the court that appellants’ appropriation and diversion of the waters of said creek above the lands of respondent diminishes the flow thereof.
For the reasons ¡herein expressed, we adhere to our former opinion.
Morgan, C. J., and Rice, J., concur.