(Concurring)'. — Plaintiff’s right to recover necessarily depends upon whether the water draining from the irrigated lands situate in section 31, township 1 *185north, range 2 east, and collected by the plaintiff’s ditch, was in fact “waste water” when collected by him. Unléss the owner of the water abandoned the excess without the intention of repossession after it had been allowed to flow over the irrigated lands of the consumers, the drain waters did not become in character “waste water,” and thereby become subject to capture by anyone other than the owner, the appropriator from the river, creek, or running stream of public water, because such appropriator, as described in this record, who is shown to have been the first appropriator of such water, for the purposes herein mentioned, as declared by paragraph 5337 of the Civil Code of 1913, “shall always have the better right to the same.”
The appropriator is thereby the grantee from the state of the title to the water appropriated from such public source for the purpose of furnishing consumers water for irrigation. When the water is delivered to the consumer, the consumer takes title to the amount of water he requires for the irrigation of his lands and for other purposes incidental thereto, but he acquires no title to the water delivered in excess of his requirements. As a consequence, the consumer has no such title in the excess water delivered to his lands as gives him the right to abandon it and thereby give to such excess when abandoned the character of “waste water.” The appropriator of the water has the title thereto, and such excess water cannot be intentionally abandoned so as to give to it the character of “waste water” by anyone other than the owner of the title thereto. In this case the appropriator of the water from the public waters of the state could abandon the water so as to give to such water the character of “waste water,” and thereby leave it in the condition to be collected, captured and possessed by one who is not an appropriator from the public streams nor who is not a consumer of water furnished by such appropriator.
Whether such owner did abandon such excess water delivered to its consumers by such delivery is a question of fact to be determined by the trial court from all the evidence in the case. Upon this issue the evidence is conflicting. The testimony of the plaintiff tends to show that the excess water was delivered to the consumers and drained off their lands, and was collected by plaintiff in a ditch constructed *186by him, and would justify the inference that such water was intentionally abandoned at the time it was delivered to the consumer. The testimony of the defendant tends to show that the appropriator of the water constructed instrumentalities such as a culvert and connecting lateral ditches for the purpose of collecting such drain water and conveying such water to other of its consumers, and would justify the trial court in drawing the inference that the said appropriator did not intend to abandon the excess water delivered to consumers located in section 31 aforesaid.
The trial court by its judgment must be deemed to have given the greater weight to the evidence of the defendant, and concluded that the water collected by the plaintiff in his ditch, and by the defendant diverted into the Western Canal Construction Company’s culvert and lateral ditches, was not “waste water” in faet.
The rule is that this court will not disturb a judgment •based upon facts determined by the trial court from conflicting evidence. The judgment has the support of substantial evidence, and is presumed correct. For such reason, I am of the opinion the judgment should be affirmed.
For authorities passing on the question of appropriation of waste water not in channel, see note in 6 L. R. A. (N. S.) 1104. And as to right to store appropriated water, see notes in 46 L. R. A. 322; 17 L. R. A. (N. S.) 329.