dissenting.
I am of the opinion that defendants’ application to have others, who are interested in the suit, made parties should have been granted. The fact that these parties are very numerous does not change the legal situation. Our Code provides that in case the parties are numerous and it is impracticable to bring them all before the court, one or more may be directed, by order of the court, to sue or defend for the benefit of all.
Every suit which seeks to have any part of a decreed water right declared abandoned is of interest to every water user in the district having a junior right. All such users are directly interested that the quantity of water held to have been abandoned shall be as large as possible. Every cubic foot of water found to have been abandoned, in effect, adds a cubic foot to the quantity from which all junior rights are supplied. Others have as much interest in the issue of the case as have the plaintiff companies; yet they are left free to litigate this same question, each in his turn. Anyone who thinks that a more favorable result might be obtained by a new suit is at liberty to bring suit. This is the very evil which the equitable rule, affirmed by our Code, *528was intended to prevent. If it be considered that the court has discretion in the matter of bringing in new parties, then the court in this instance abused its discretion in not making the order requested.
But more important than this defect in parties is the fact that the referee received in evidence and manifestly made his findings upon testimony which was clearly incompetent.
The record contains a mass of evidence upon the duty of water, to which objection was duly made, and the remarks of the referee clearly indicate that he thought he was authorized to find that all right to water in excess of the quantity necessary to irrigate the land under this ditch had been abandoned.
He finds that all except 16.70 cubic feet per second had been abandoned. How did he arrive at this particular quantity as not having been abandoned, especially in view of the fact that he could not determine what quantity of water was meant by the terms of the original decree? He finds that the total area to be irrigated was 835 acres, and the decree leaves to this land exactly one cubic foot of water to each tract of 50 acres. This fact, taken in connection with the evidence as to the duty of water, and the needs of this land, makes it practically conclusive that it was upon that evidence that the finding was based. There is no other evidence upon which it appears that it could have been based.
Further, the finding admits that in times of high water the plaintiffs in error had used more than 16.70 cubic feet of water. That being so they cannot be held to have abandoned all but 16.70 cubic feet. They were using water under a decree giving them the right to a quantity admittedly largely in excess of that allowed by the referee, and it must be assumed that they were receiving it under the decree, at least to the extent of the amount fixed therein. In the *529ease of Drach v. Isola, 48 Colo. 134, 109 Pac. 748, relied upon to support the finding, the water used in flood times was in excess of the amount decreed, and could not, therefore, it was held, establish a use under the decree.
Decided October 4, A. D. 1915. Rehearing denied February 7, A. D. 1916. .The findings ignore the undisputed testimony of defendant in error’s own witnesses that the ditch had a capacity to carry, and had, within the time in which non-use was relied upon to show abandonment, carried far more water than the decree allows.
From a careful reading of the record I am forced to the conclusion that the cause was tried and determined on the theory that plaintiffs in error should be held to have abandoned their rights to so much of the water decreed to them as is not actually needed for their lands.
This amounts to a readjudication of the right, and is an amendment of the original decree.
However desirable it may be that parties be prevented from using water in excess of their needs, the question of excessive use cannot be tried in a suit for abandonment. For the reasons above stated I cannot agree with the majority opinion.
I am authorized to state that Mr. Justice White concurs in so much of this opinion as relates to the evidence and findings, and upon the question of parties he expresses no opinion.