Dissenting. — The waters of Jagles Springs are property of Idaho and were subject to appropriation wherever found. They were unappropriated, public waters, the right to use which might be acquired until they were used in the irrigation of the lands of these litigants. The parties to this action having failed to conform to the requirements of the law in making their applications to the state engineer, their priorities depend on the dates they placed the waters to a beneficial use.
It must not be understood that C. S., sec. 5560, grants to respondents the right to use the creekbed as a ditch -without the consent of the owner of the land on which it is situated. Furthermore, the evidence does not justify the conclusion, which may be drawn from the foregoing opinion, that, in taking the water, appellant committed a trespass.