(dissenting).
The trial court dismissed the appellants’ claim even though the evidence disclosed that as early as 1931, water was diverted from a spring arising upon appellants’ land which flowed into Sallee Creek, and which was used for domestic, livestock watering and irrigation purposes by the appellants’ predecessors in interest upon the land that appellants now own. The basis for this ruling was that the appellants’ proof was completely devoid of the amount of such diversion. I do not believe this to be en*516tirely correct. There is evidence in the record which would indicate that an ascertainable quantity of water was diverted from the spring onto the appellants’ land while the land was held by their predecessors in interest prior to the issuance of the water permits to the respondents.
At the very least, the appellants should be given the opportunity to establish the extent of the diversion. Accordingly, I would remand this case back to the trial court for this evidentiary determination. If the appellants can present to the court sufficient evidence as to the amount of water actually diverted and applied for a beneficial use by their predecessors, and if such diversion antedated the water permits issued to the respondents, then the order of priority for the use of the waters of Sallee Creek must be reversed.
BAKES, J., concurs.