ON REHEARING.
Mb. Justice Goddarddelivered the opinion of the court.
Upon rehearing counsel have favored us with elaborate and able arguments, both oral and written, upon some of the questions considered in our former opinion, and also in *549support of the further claim that appellants are not now entitled to the amount of water decreed to Cheyenne ditch, notwithstanding our conclusion that the original decree adjudging such priority is valid, and not open to direct or collateral attack, because of the failure of appellant and its grantors to apply the same to the use intended; and that by reason of such nonuser they have forfeited and abandoned their right to a portion of the amount so decreed.
Upon careful consideration of the reasons urged against the correctness of the conclusions announced in our former opinion, we see no reason for changing or modifying our views as therein expressed; and we think that the record discloses two sufficient answers to the proposition now for the first time advanced, that, since the entry of the decree, appellants and their grantors have abandoned a portion of the water given to the Cheyenne ditch priority: first, because no such issue is presented by the pleadings; an examination of the answers of appellees fails to disclose any allegation that appellant or its grantors had failed to use the water decreed to Cheyenne ditch, or had in any way abandoned any right to any portion thereof; and second, because, from an examination of the testimony of the appellees themselves, it appears that appellant and its grantors have, since the year 1883, used all the water of Cheyenne creek, whenever necessary, to the detriment of appellees, and to the extent certainly of depriving them of water that they claimed to own. It is clear, therefore, that appellees are not in a position to urge the claim of abandonment.
But appellees strenuously insist that, if they are wrong upon this and every other proposition, they still have the right to conduct the amount of water through their pipe line which was theretofore used by them for domestic purposes ; and that the former opinion of the court upon this question should be modified, and the cause remanded for the purpose of ascertaining how much water is necessary to supply this use; and that they be decreed the right to divert such amount through their pipe line.
*550We still think this claim untenable. As we have seen, the right acquired by the grantors of the defendant company to use the water of Cheyenne creek for domestic purposes was the same as that of a riparian owner at common law, and therefore inseparable from riparian ownership. It is not subject to conveyance separate and apart from the land; nor did they attempt to convey such right to the Brookside company. The rights conveyed, as shown by the deeds contained in the record and the evidence of appellees themselves were the ditch rights or priorities claimed and held by the company’s grantors under the decree of 1882. If the right to such a domestic use is unaffected by the decree, as appellees claim, then it did not pass by the conveyances to the Brookside company, and remains and is still available by the riparian owners upon Cheyenne creek.
There is nothing in our former opinion that precludes such parties from enforcing, by appropriate proceedings, their right to such use, if they are entitled to it, and prohibiting any interference therewith by appellants or others. All we do decide is that the water could not be used for such purpose by the company, through its pipe line. The right to still use water for domestic purposes from the creek itself is not in issue, and consequently is in no way determined by the decision of this case.
For the foregoing reason the former opinion is adhered to.
Rehearing denied.
Chief Justice Campbell not sitting.