I dissent. The action was tried without a jury, and the court made very full findings. Judgment went for defendants, from which} and also from an order denying their motion for a new trial, plaintiffs appeal.
The action may be called, generally, I suppose, an action to quiet plaintiffs’ title to certain waters of a stream called San Antonio creek; but it is exceedingly difficult to tell from the complaint what the particular right is which plaintiffs seek to have declared, or what the particular wrong is of which they complain. It would have been much better if the court had sustained the demurrer to the complaint, at least upon the grounds of ambiguity, uncertainty, and improper joining of causes of action. The complaint could then have been amended so as to have shown clearly what the plaintiffs’ asserted right was. The only exceptions presented by the record *509are to the insufficiency of the evidence to sustain the various findings; and, of course, these exceptions are subject to the rule that a finding must be sustained when there is substantially conflicting evidence respecting it.
The complaint and the prayer show that the main foundation of plaintiffs’ asserted rights is a certain contract alleged to have been made between the plaintiffs and the defendants touching the right of the plaintiffs to tap and make connections with a certain ditch of defendants, and to take water from it at the point of connection. But the court found that there never was such a contract; and it is sufficient to say that the evidence fully warrants that finding.
It is clear beyond all question that, in 1883, one J. D. Hines settled upon certain United States public lands lying on and near said San Antonio creek, and, in that year, constructed a ditch at a certain point on said creek, and through said ditch diverted the water of said creek to the extent of seventy-eight and seventy-seven one-hundredths inches, and carried the same to the lands upon which he had settled; that the defendants are the successors in interest of said Hines to said ditch and water right; and that from said 1883 to August 4, 1894, when this suit was commenced, said Hines and his successors in interest, including these defendants, have continuously, notoriously, and adversely to all the world, continued, without interruption, to divert, through said ditch on to said lands, all the water of said creek when said water was not greater in amount than seventy-eight and seventy-seven one-hundredths inches. Several years after said 1883, to wit, 1886, one of the plaintiffs, Edwin Senior, also settled upon a tract of public land on and near said creek, and, on the 3d of November, 1887, he posted a notice on said creek, about one mile below the head of the ditch of defendants above described, stating that he claimed the water there flowing to the extent of fifty inches, and intended to divert the same by a ditch, flume, etc., and in due time constructed *510a ditch, and in said ditch did divert from the stream, at divers times, such water as was flowing therein, at the point of said diversion, for use upon his said land.
The court found that “when the waters of the said stream flowing to defendant’s dam and ditch, as hereinafter mentioned, was less than seventy-eight and seventy-seven one-hundredths inches of water, the said plaintiffs did not divert any water from the said stream, except such small quantity as might seep under the defendant’s dam, or through the banks of the stream below the dam of defendants.” The court also found .“that J. D. Hines settled upon certain lands riparian to the said Antonio creek, and above the lands of the plaintiffs in this action in 1883, and all the water flowing in said Antonio creek to and upon the lands of said J. D. Hines in the said year 1883, and ever since, in the ordinary stages of the water, was necessary for uses upon the said lands so occupied by the said J. D. Hines for agricultural and domestic purposes; and all the said water flowing in said stream in ordinary stages, and to the amount of seventy-eight and seventy-seven one-hundredths inches, was diverted from the said stream by the said J. D. Hines, and used upon the said lands until the death of said J. D. "Hines, and ever since.” Also: “The court further-finds that the said J. D. Hines and his successors in interest have diverted the waters of said Antonio creek to the extent of seventy-eight and seventy-seven one-hundredths inches, measured under a four-inch pressure, and have used the same for agricultural and domestic purposes ever since the year 1883, so long and during every portion of each year when that amount of water was flowing therein; and when less than said seventy-eight and seventy-seven one-hundredths inches, measured under a four-inch pressure, was flowing in said stream at or above the dam where the same was constructed by the said J. D. Hines in 1883, then the said J. D. Hines and his successors in interest diverted and used the whole of the said wrater, and such use has been open, notorious, and adverse, and under a claim of *511right, peaceable, continuous, and uninterrupted, until the commencement of this action.”
It is contended by appellants that the foregoing findings are not supported by the evidence. This contention, however, in my opinion, cannot be maintained.
As to the actual, continuous, notorious diversion of the amount of water above named, from 1883 to the commencement of the action in 1894, there is no question or doubt whatever. The whole point of appellants’ contention in this matter is that, during the earlier years of Hines’ possession of this ditch and water, he did not apply the whole of it to a beneficial purpose—that is, that he did not actually use the whole of it in irrigating his land. The point made is that an appropriation of water must be for a beneficial purpose, and that the whole of the water carried by the ditch was not used. No doubt the rule is that there cannot be a valid appropriation of water where the intent is merely to allow it to run to waste.
Mr. Pomeroy correctly states the rule as follows: “In order to make a valid appropriation of water upon the public domain, and to obtain an exclusive right to the water thereby, the appropriation must be made with a bona fide present intention of applying the water to some immediate, useful, or beneficial purpose, or in present bona fide contemplation of a future application of it to such a purpose by the parties thus appropriating it.” In looking through the evidence it seems to me that the court was fully justified in finding that the appropriation by Hines was within the principle above announced. The present defendants became owners of the Hines ditch and water right more than five years before the commencement of this suit; and there is no doubt that they, for some years before the commencement of the suit, actually used the whole of this water for a beneficial purpose. And, while there is some conflict in the evidence as to how much water Hines used during the first years of his occupancy of the land, there is sufficient upon that point to justify the finding of the court. *512Where, as in this case, there has been, beyond a doubt a' continuous, actual diversion of water through a ditch, and that water has been used generally for a beneficial purpose for a period more than twice as long as the period of limitation, it would be a dangerous thing, in my opinion, to upset a right thus so long exercised, upon slight evidence that the whole of the water was not continuously used. Title to valuable property should not thus be hazarded. And where in such a case, a trial court or jury has found that the appropriation was for a beneficial purpose, we would not be warranted in overturning such finding, unless the evidence supporting it was “slight” in an extreme sense. In the present case I see no reason for disturbing the finding.
There are no other features of the case necessary to be specially noticed, and, in my judgment, the conclusions of the court below should not be disturbed.
Rehearing denied.