—The District Court properly excluded the notices of location offered in evidence by plaintiffs and defendants. The absence of affidavits was a fatal defect.
The decree is based on the theory that a water right cannot be acquired save by compliance with the statute regulating the appropriation of water. We think the trial judge took an erroneous view of the law. The statutes of this state in reference to the acquisition of water rights are substantially the same as those of California.
Section 1257, Fifth Division, Compiled Statutes 1887 (Section 1888, Civil Code 1895,) is as follows: “A failure to comply with the provisions of this chapter deprives the appropriator of the right to the use of the water as against a subsequent claimant who complies therewith, but by complying with the provisions of this act, the right to the use of the water shall relate back to the date of posting the notice. ’ ’
This section is substantially the same as Sections 1418 and 1419 of the Civil Code of California. In the Montana section, however, the word “appropriator” is used in lieu of the word “claimant” in the California sections aforesaid. It is insisted that for this reason the Montana statute should be construed in a different manner from that of California. By a reference to the other sections of the Montana act, however, *266—Sections 1255, 1256, Fifth Division, Compiled Statutes 1887 (Sections 1886, 1887, Civil Code 1895,) — in which the word “appropriator” occurs in the sense of “claimant,” it is manifest that the said word, as used in said Section 1257 (1888), is not susceptible, of any greater or narrower force than the word “claimant.” Hence the two-words may be regarded as convertible, and as expressing the same meaning. Therefore no distinction can be drawn between the California water right act and that of Montana.
In California it is held that a valid water right may be acquired even when there has been no compliance with the statute, where water has been actually diverted from a stream by means of a ditch, and applied to a beneficial use, in the absence of the inception of any adverse statutory claim. (Wells v. Mantes, 99 Cal. 583, 31 Pac. 321.)
In tee case of De Necochea v. Curtis, 80 Cal. 397, on pages 400, 101, 20 Pac. 563, and 22 Pac. 198, to the same effect, the court expresses its view of the law as follows :
“Sections 1115 and 1116 of the Civil Code read as follows :
“‘Section 1115. A person desiring to appropriate water must post a notice in writing, in a conspicuous place at the point of intended diversion, stating therein : (1) That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; (2) the purposes for which he claims it, and the place of intended use; (3) the means by which he intends to divert it, and the size of the flume, ditch, pipe or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted.’
“ ‘Section 1116. Within sixty days after the notice is posted the claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain. ’
“It may be conceded that, if these provisions of the law *267stood alone and unqualified, strict, or at least substantial compliance with their requirements would be, as counsel claims, a sine qua non to the acquisition of any right to divert running water from its natural channel. But these provisions do not stand alone.
“Section 1418 reads as follows: ‘By a compliance with the above rules the claimant’s right to the use of the water relates back to the time the notice was posted. ’
‘ ‘In this provision we begin to see the purpose and object of the legislature, which, in our opinion, was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation, upon which it had always been' held, before the statute, that one who gave sufficient notice of his intention to appropriate, and followed up his notice by diligent prosecution of the work, was, upon its completion, to be deemed an appropriator from the date of his notice, and was therefore prior in time and stronger in right than an intervening appropriator, notwithstanding his diversion of the water might be first completed. We are not, however, left to any doubtful implication to be drawn from Section 1418. Section 1419 reads as follows: ‘A. failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith. ’ This language clearly and necessarily implies that there is a right to the use of running water, acknowledged by the legislature and cognizable by the courts, which is good against all the world except a claimant who has complied with the rules prescribed in Sections 1415 and 1416. blow, what is this right? What can it be, except the right of one who has fully completed the diversion of running water, and applied it to a beneficial use, before the initiation of an adverse right of appropriation under the law, or the acquisition of an adverse right in the land to be affected by the diversion ? And why should not such a right be recognized and enforced?”
We think the construction of the statute by the Supreme Court of California is logical and correct, and are of the *268opinion that the Montana act should be construed in the same manner. The Montana legislature, in the enactment of said water-right act, intended to regulate the doctrine of “relation back.” Prior to its passage, on March 12, 1895, no notice pf location or record of appropriation was required. A person acquired a right to the use of water by digging a ditch, tapping a stream, and turning water into it, and applying the water so diverted to a beneficial use. This constituted a valid appropriation of water.
For years before the statute was enacted the rule of law was ‘ -that the appropriation of water by persons who prosecute the work on their ditch with reasonable diligence dates back to the commencement of the work.5 5 (Woolman v. Garringer, 1 Montana 535.)
Therefore, as between two persons digging ditches at the same time, and prosecuting work thereon, with reasonable diligence, to completion, the one who first began work had the prior right, even though the other had completed his first. This was the doctrine of 1 ‘relation back. ’ ’
Questions of priority, however, as well as of the original capacity, etc., of ditches, depended chiefly on oral testimony, —on the memory of eyewitnesses, often at fault through lapse of time. Confusion and insecurity to vested rights resulted. To obviate this as much as possible, the statute was enacted. It required a notice of location to be posted at the point of diversion, to apprise others who contemplated the acquisition of water rights from the same stream that the locator had taken his initial step to appropriate water. It required a recorded notice of appropriation, in order that a record might be supplied, giving the history in detail of each appropriation, which would inure to the benefit of their successors in interest, as well as to the appropriator’s, and not leave them dependent upon the mere memory of witnesses when conflicts should arise. In enacting this law the legislature did not contemplate that one who failed to comply with the terms of the statute, but who, in the absence of any conflicting adverse right, had nevertheless actually diverted *269water and put it to a beneficial use, should acquire no title thereby. The essence of an appropriation — a completed ditch, actually diverting water, and putting it to a beneficial use — remained the same as it had been before. The object of the statute was to preserve evidence of rights, and also to regulate the doctrine of relation back. It follows that the statute controls this doctrine of relation back, and that one who seeks to avail himself of it since the passage of this act can only do so by a compliance with the statutory requirements.
Again, we are satisfied that the legislature did not intend that one who failed to comply with the statute, but who had nevertheless actually diverted water, could be deprived of it by another who complies with the statute at a time subsequent to the former’s completed diversion. (See Wells v. Mantes, 99 Cal. 583, 34 Pac. 324 and Watterson v. Saldunbehere, 101 Cal. 107, 35 Pac. 432.)
Neither appellant Charles Murray nor the defendant appellants complied with the statute, but, as between Charles Murray and the defendant appellants, the right of defendant appellants is a superior one. The latter had their ditch completed, and water flowing over their land, a year before the former did. Defendant appellants and Charles Murray both acquired valid water rights, despite a noncompliance with the statute; but the right of defendants is superior to that of Charles Murray, although he commenced work on his ditch first.
As to Charles Murray and defendant appellants, Louis Murray acquired no superior right by virtue of his appropriation in 1891.
One other alleged error defendants appellants submit for our consideration, namely, that the trial court, in allowing the amendment it did, permitted one cause of action to be substituted for another.
In the view we have taken of the law applicable to this controversy, whether error was committed or not in this respect is not very material; but we do not think, under the statute *270regulating the appropriation of water, which expressly provides, in Section 1260, that the court may in one decree settle the relative rights of any and all persons who are parties to the litigation, the objection would be well taken if Louis Murray’s 1891 appropriation could have availed him (which, however, as has been shown, it could not). It would not have been the substitution of one action for another, so far as Louis Murray was concerned, in such an event.
It was stipulated in the lower court that “the facts conceded to be true in reference to the history of the defendants’ appropriation of water were admitted only for the purposes of the particular trial, and without prejudice to the fight of either side to contradict or vary the facts so conceded if a further trial should be had.”
In view of this stipulation and the error committed, the order of this court is that the judgment be reversed and the cause remanded, with directions to the lower court to grant a new trial and proceed in pursuance with the views herein expressed.
Reversed and Remanded.
Pemberton, C. J., and Hunt, J., concur.