As I construe the findings of the superior court, they show with sufficient clearness that from the completion of plaintiff’s ditch, in 1874, down to the year 1884, it has continuously diverted water sufficient to fill said ditch, excepting only when the natural flow of the stream (Cross Creek) was insufficient to fill it, and that at such times it diverted all of such natural flow; that the Hyde ditch of defendants, as originally constructed, in 1876, diverted no appreciable quantity of water, but that after, and only after, the enlargement of the Hyde ditch, in 1882, and the subsequent construction of the Manning ditch, the defendants have been diverting water included in plaintiff’s appropriation. I should not, therefore, regard the findings as insufficient in this respect, even if the plaintiff’s right was founded exclusively upon prescription. But the truth is, plaintiff’s right rests upon a prior appropriation, and does not need to be supported by proof of uninterrupted user, and if the findings require the construction placed upon them in the opinion of the court, the fault seems to me to be immaterial.
*188The defendants, on the other hand, must rely upon prescription to justify a diversion of any water previously appropriated by the plaintiff, and upon that point I do not consider that the finding of the superior court against defendants’ claim is so clearly unsupported by the evidence as to justify us in reversing it. The testimony seems to be entirely consistent with the view that from 1876 to 1884 the original (unenlarged) Hyde ditch diverted no appreciable quantity of water, except when the stream was high and water abundant.
As to the offer of the defendants to show that other persons, not parties to the action, had taken out water higher up the stream, by means of ditches constructed later than any diversion by plaintiff or themselves, and that such more recent diversions of water were the real cause of the injury to plaintiff, I think the ruling of the court excluding the testimony was correct in the present state of the pleadings. To make such testimony material, defendants should set up in their answer the facts showing the necessity of making such third persons parties to the action, in order to a complete determination of the rights of all in the waters of the stream. Upon a proper showing of the facts,—which I think should be allowed by amendment, if requested,—the court might direct other subsequent appropriators to be brought in.
Differing in these particulars from the views expressed in the opinion of the court, I nevertheless concur in the judgment, upon the ground that there should have been a more specific finding of the exact quantity of water, measured by some definite standard (miners’ inch, for example), appropriated by plaintiff, and that the decree should have been equally specific in its injunction.
Thornton, J., concurred.
Works, J., concurred in the judgment, and in the views expressed by Chief Justice Beatty.