Appellant urges the order of the court, overruling his demurrer to respondent's answer, as error.
*557It would seem that, as a matter of practice, if the answer failed to state facts sufficient to constitute a defense, as to substantive matter, the objection raised by demurrer could be urged in the appellate court, even after replication was made and trial had. But if the answer was defective in form of denial or averment only, or the defects were such as could be cured by trial and verdict, the same would not be ground for reversal on appeal after replication and trial. In Bohm v. Dunphy, 1 Mont. 340, it is said in the opinion of the court: “Appellant claims that inasmuch as the plaintiff did not abide his demurrer to the answer, but filed a replication, his demurrer was thereby waived, and the issue of law thereby raised cannot be reviewed on this appeal. j This would be true if the answer was defective only in form, or in such matter as could be cured by verdict.”
We have set out, in the statement above, the complaint, in substance, and the answer almost entirely by quotation of its own terms, in order to bring these pleadings to view for the consideration of the objections raised thereto. In our opinion, the court committed no error in overruling the demurrer to defendant’s answer. This answer traverses each allegation of the complaint, either by direct, positive denial, or by denial on information and belief. Therefore as to that portion of the answer the demurrer cannot be sustained. (Boone on Code Pleading, §§ 110-112.)
In addition to that part of the answer which traverses the allegations of the complaint, it set forth, as new matter of defense, that said Sweetwater Creek is not a running stream during the irrigating season, i. e., “from about the 1st of June each year until the ending of the irrigating season;” and that none of the waters flowing into said creek at defendant’s ranch could, in the course of its natural flow, reach plaintiff’s ranch, fifteen miles below. The facts alleged in relation to this condition of said creek during the season in question are set forth sufficiently; and in our judgment, if such facts could be established, the same is proper matter of defense in an action of this nature. We think the court ruled correctly in overruling the demurrer as to these allegations. This feature of the case will be further treated below in considering the sufficiency of evidence offered in support thereof. The answer also *558sets up the fact that defendant has collected certain waters from springs, by means of ditches and reservoirs, which he alleges would not otherwise reach said creek, and used the same for the irrigation of his land. These allegations are not as certain as a pleading ought to be. It would seem from implication only that the waters so collected, or at least some portion thereof, are conducted into said Sweetwater Creek. That fact is not directly alleged, but it is asserted that defendant “also thereby increased the volume of said creek twenty-five inches of water.” From one point of view, these allegations, as to the collection of water by defendant from entirely different sources than Sweetwater Creek, might be considered as irrelevant; but if the water so collected was turned into said creek, as implied by other averments, and then taken out by defendant, those allegations become relevant to the controversy, as showing the real source of the water, or a portion thereof, which defendant was diverting from said stream. As before observed, these allegations are not sufficiently certain, but there was no motion by plaintiff to require defendant to make his answer more definite in this respect. These defects, being of form — looseness of statement only — are such as would be cured by evidence and findings, and are not sufficient to reverse the cause on appeal.
Upon the other assignments there is more difficulty involved in arriving at a determination of them, but, on the whole consideration, we have arrived at the conclusion that the judgment and order appealed from ought to be affirmed.
There are two defenses set forth in the answer: (1) That none of the water of that branch of said creek on which defendant’s ranch is situate, flowing therein at the point at which defendant diverts it, ever would or could reach plaintiff’s ranch, in the natural course of its flow, during the irrigating season; (2) that defendant was entitled to the water which he diverted from said creek, by right of prior appropriation thereof by his predecessors in interest, to whose rights and interests he alleged he had succeeded. The court found both defenses established by the proof introduced, except that defendant had at times diverted some more than the forty-five inches of water from said creek, to which the court found him entitled; the amount of which *559excess the court could not definitely find. Both of these findings are attacked by appellant on the ground of insufficiency of evidence to support either of them.
As to the first defense, in the order stated above — namely, that the waters of said creek, if allowed to remain therein, could not, in the course of its natural flow, reach plaintiff’s place of diversion — several witnesses testified at the trial that this condition existed as to that branch of said creek on which defendant’s ranch is located, and from which he diverted the Avater in controversy. These witnesses testified that defendant’s ranch is located at or near the head of one of the branches of said creek; that said branch does not constitute a running stream during the irrigating season; that the Avater Avhich Aoavs therein at and above defendant’s ranch, during that season, sinks and disappears a short distance below defendant’s ranch, and a long distance above plaintiff’s ranch; that in many places betAveen said ranches, during said season, said creek, so called, is entirely dry, and is not a floAving stream. This testimony, according to the statement of said witnesses, was based upon many years of observation, and a thorough acquaintance Avitli said creek.
It appears from reading the testimony that the trial court had ample evidence to support its finding that the Avaters of said creek, to the extent of forty-five inches, which defendant Avas charged with having unlawfully diverted, Avould not, if alloAved to remain in the creek, reach plaintiff’s ranch during the irrigating season. The effect of the testimony and finding on this point of the case appears to be that, Avhen the Avaters of said branch diminish during the dry season to about forty-five inches, that amount of Avater is insufficient to carry the flow doAvn said creek to plaintiff’s place of diversion, The further effect of that finding is that when, from any cause, said creek contains a larger volume of water, which would carry its flow doAvn to plaintiff’s ranch, he would receive the benefit of all ' over and above forty-five inches, because defendant is prohibited by the decree from exhausting the volume thereof to any extent greater than forty-five inches; and the effect of the finding and decree appeal’s also to be that if the volume is reduced by natural conditions to about forty-five inches of Avater, at defend*560ant’s ranch, the prohibition upon defendant of diverting the same would be of no benefit whatever to plaintiff, because the same could not reach him by reason of natural conditions, which caused said waters to disappear before reaching plaintiff’s point of diversion.
Appellant’s counsel argue that if there are forty-five inches of water in said creek at defendant’s ranch, and plaintiff had a prior right to the waters of said creek, he is entitled to an injunction to compel defendant to leave said water therein, peradventure one inch might reach plaintiff’s irrigating ditch at a point fifteen miles below.
Under the theory of the law of tins State relating to water rights, the prior appropriator may insist that the water remain in the stream, from which he has the right of prior appropriation, so long as any useful quantity thereof would reach his point of diversion, if allowed to remain. He is entitled to insist that all of such water remain, in order to carry the flow down to his point of diversion, although a large portion of it would be lost by evaporation and percolation. He has the right to the prior use of the water of the creek, and while he may be entitled to a stated quantity only, it may require much more than that quantity in the creek to carry the amount he is entitled to down to his point of diversion. While these propositions are undoubtedly true, according to the law of water rights prevailing in this State, it should be remembered that the right in question is not of that absolute character, in view of the law which pertains to the ownership of things. One of the primary facts upon which the water right is founded, and without which it cannot exist, is the power of the appropriator to utilize the water which he claims for some lawful and beneficiary purpose. Would it not, therefore, be unreasonable, and contrary to the theory of the law governing the subject under consideration, to hold that although experience of many years, and actual demonstration, confirm the proposition that none of the water in controversy could, if left in the stream, reach plaintiff’s place of diversion, at a distant point below, still defendant should be restrained from the use thereof on the ground of plaintiff’s prior claim to the water of said stream, at the place of his diversion? In our judgment, such holding *561would be entirely contrary to the spirit, if not to the letter, of the law; and there is not, even in the letter of the law, anything tending to such a doctrine. But these observations should not be misconstrued or misapplied, so as to allow wrongful diversion or diminution of the waters of a stream, on the pretense that the water so diverted would be lost, unless it can be shown that by a long course of experience, and not as the occasional result of some unusually dry season, none of the waters in controversy would, if allowed to remain in the stream, reach the prior appropriator’s point of diversion.
There are some difficulties apparent, and perhaps others, not at once apparent, in the problem under consideration. From certain points of view there may be some want of completeness in the findings of the court below, in determining the controversy. For instance, if, taking the state of facts as found, forty-five inches of water of said creek, flowing at defendant’s ranch, would not reach plaintiff’s point of diversion, still it would seem to be shown in effect, and admitted, that a greater volume of water would carry the flow down to plaintiff’s ranch, fifteen miles below. What volume of water would be necessary to carry the flow down to plaintiff’s ranch is not found, and cannot be ascertained from the evidence. If, however, for example, seventy-five inches of water flowing past defendant’s ranch would carry twenty-five inches thereof to plaintiff, and defend-, ant was allowed to take forty-five inches, it is apparent that, in effect, he would be taking away from plaintiff the twenty-five inches to which he was rightfully entitled, under the conditions stated. And probably, in such a case as we have here, more complete and exact justice would be arrived at by finding what volume of water was necessary in said creek, at defendant’s ranch, to carry any useful quantity thereof to plaintiff, situated as these litigants are, and also providing in the decree that defendant could only take the water when the volume thereof was reduced so low that none of it would reach plaintiff’s point of diversion; finding, of course, the quantity necessary to produce one or the other of these conditions. But a review of the record shows that no such findings were asked. Perhaps plaintiff and his counsel understood that such findings would be of no practical consequence, for, when the volume *562of water rose sufficiently to flow down to plaintiff’s point of diversion, the supply may be sufficient for plaintiff, notwithstanding defendant was allowed to take forty-five inches. It may be from that practical view of the case no such findings were desired.
The court further found “that, in the year 1884, one Samuel Weightrnan had, by means of a ditch, diverted and appropriated and used, about forty-five statutory inches of the waters of said creek, for the purpose of furnishing power to operate a water wheel for mechanical purposes, to wit, churning; and that thereafter, in the year 1885, one David Stortvant, and one Isaac Seyster, without objection from said Weightrnan, or any other person, entered into peaceable and quiet possession of said water wheel, ditch, and water right, and continued in such possession until the year 1887, in which latter year they, for a valuable consideration, voluntarily surrendered the possession of said ditch, wheel, and the use of said water to the defendant Wimsette, and that said Wimsette has been continually in the possession thereof ever since, using said water for agricultural, and other proper, useful, and beneficial purposes.” “That the appropriation of water by Samuel Weightrnan in the year 1884 was prior in point of time to the appropriation of the plaintiff Raymond in the said year 1884.”
Upon these findings the court stated its conclusion of law that defendant is entitled to forty-five inches of the waters of said creek, through said appropriation “by Samuel Weight-man in the year 1884, and that said appropriation of Weight-man was, and is, prior in point of time to the appropriation of plaintiff, commenced in the fall of the year 1884, and that he has the proper possessory right and title to land sufficient to require said use.”
There are several assignments of error as to the admission of testimony on this branch of the defense, and it is also contended that the evidence is insufficient to justify the findings and conclusion last above quoted. In our view, however, it is unnecessary to consider those assignments, because the determination of the court on the other branch of the ease necessarily sustains the decree. By the decree the defendant is not allowed to take *563more than forty-five inches of water from said creek under any conditions, or through any claim or right set up in the action.
The judgment and order appealed from will therefore be affirmed
Affirmed.
De Witt, J., concurs. Blake, C. J., did not participate is this decision, being disqualified.