dissenting.
T cannot agree with my associates in the disposal *330of this case. I do not think the evidence shows the existence of an underground flow of water through the sand, in any defined or known course, from the Medaño creek to either of .the springs from which the plaintiff made its appropriation of water. When the Medaño emerges from its canyon it flows in a southwesterly direction in a well-defined channel for about a mile and a half, where the channel widens so ■that three miles above Mosca creek the stream bed is about six hundred feet wide and below Mosca creek it widens .to eleven hundred feet. The water usually disappears in the sand before reaching Mosca creek, but when the water is very high it flows on the surface to about the point indicated on the map.
Former state engineer Green testifies that there is no apparent loss in volume until the channel of the creek widens.
There is no point in the course where the water disappears with a current, and it all disappears at varying distances of from three to seven miles from the plaintiff’s springs. Even if it be assumed that a considerable portion of the water from the Medaño makes its way to the Big Spring by percolation along an ancient watercourse, it seems to me that that is merely waste or seepage water, and that the plaintiff is entitled to it as such under its prior appropriations «..i against any one taking it from the sands; but that the plaintiff did not acquire the right to have the water in Medaño creek run to waste, and the defendants are, therefore, entitled to use the water from the natural stream, notwithstanding such use may diminish the seepage supply of the plaintiff.
The reasons given by the court for the finding that the waters of Sand creek do not contribute to the supply of the Big Spring appear to meto apply equally *331to the waters of the Medaño. It is the merest guesswork to attempt to determine the source of.supply of a spring-from comparative elevations and the quantities of water flowing in different streams in its neighborhood.
There was evidence that the flow of the springs diminished after the sinking of a'rtesian wells and before the defendants took water from the Medaño. I think k might well be true that the water-table which supplies the artesian wells also supplies the springs, and that the artesian wells affect the springs more directly than the Medaño creek does.
A copy of plaintiff’s exhibit “C,” which I have attached hereto, will show more accurately than any written description the points in controversy in this case.
The principal elevations necessary to an understanding of the map are: Big Spring 7,909.32 ft., Little Spring 7,897.42 ft., Medaño creek at point due east from Big Spring 8,450 ft., Medaño creek at point due east from Little Spring 8,100 ft., Sand creek (Rito Arena) at point northwest from Big Spring 7,960 ft.
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