*45ON PETITION EOR REHEARING.
Per Curiam.Appellees petition for a rehearing, based upon the ground that we are mistaken, in holding that the trial judge adopted the findings of the jury with respect to the diversion of water by the upper well from the channel of the stream, and based the decree thereon, and insists that he made findings of his own, which their counsel claim is established by the decree itself. The entire record is before us, and whether the court adopted the findings of the jury or not, can be determined from the récord as a whole, which clearly discloses that the verdict of the jury was adopted, and the judgment rendered based either on a misconception of what the findings were, or as to what the issue was. In his original brief counsel for appellees says: - “ The issue that was tried to the court was submitted to a j ary at the request of appellees, and the interrogatories covering the issue that was tried, and several others, were submitted to the jury, and the jury answered the interrogatories, with which answers the court agreed in so far as the answer to any of said interrogatories affected the issues in the case.” And elsewhere in his brief, says: “ The court, by its finding of fact, in so far as any interrogatory affected the real issue of the case, agreed with the verdict of the jury.”
The only issue was the diversion of water from the stream itself. This the jury found in favor of appellant, and if, as counsel say, the court agreed with the jury, it in effect adopted their verdict, or, at least, made the same finding they did; and therefore, based its judgment upon a finding of fact with respect to the diversion of water by the, upper well, which did not entitle the appellees to the judgment rendered; and further, from other remarks, it is evident the learned judge, in determining the rights of the parties to this controversy, based his conclusions upon the proposition that the operatipn of the well depleted the stream, without any distinction between the interception of percolating waters and their withdrawal from its channel.
*46Again, the trial judge, in commenting on the verdict with respect to the lower well, said: “ A question of fact was submitted. to the jury, for which they were specially called, and they found that'the allegations that the lower well diverted water from the stream, either directly or indirectly, was not sustained by the proof, and with their verdict we must rest content; otherwise, it would make the calling of a jury to settle a question of fact in a chancery proceeding simply a farce. I do not feel justified in disregarding the recommendation of the jury.” He then proceeds to comment on the verdict with reference to the upper well, and after employing this language with respect to part of the verdict, it is not probable that the remainder would be disregarded, without expressly so stating.
But it is not necessary to pursue this subject further. Since the filing of the petition, the evidence has been carefully examined, from which it appears that even if it should be conceded that the trial court made findings of fact independent and different from the verdict by winch it found, on the only issue in the case, in favor of the appellees, then its judgment is clearly erroneous, because there is no evidence to sustain such finding. True, the evidence did establish that after the operation of the upper well for a considerable period, the flow in the stream was somewhat depleted, but this was occasioned, not by the withdrawal of water from the channel of the stream, but by the interception and collection of percolating waters on their way to it. This effect was practically limited to the springs mentioned in the main opinion, but, as we have already noticed, it was not the flow from these springs, in the channel, which was affected by the operation of the well, but the volume discharged by the springs themselves. This result may have been caused by the interception of subterranean waters which, in part, supplied such springs, but the right to such waters was not in issue; nor does this effect on the springs make the case of Bruening v. Dorr, 23 Colo. 195 (relied upon by counsel for appellees) in point; for in that case, the judgment was based *47upon the fact that the water diverted, as against the rights of a prior appropriator, consisted in its diversion from a stream fed by springs, and not a diminution of such flow by the interception of percolating water, which may have formed part of the source of supply of such springs.
On the only issue in the case, under the evidence, the judgment should have been for appellant. The petition for rehearing is denied.
Petition denied.