— Action for a perpetual injunction restraining defendants from the use and diversion of the waters of Glover’s canyon, in Deer Lodge county. Plaintiff claimed under an appropriation made by one Glover. Defendants denied plaintiff’s title, and pleaded title in themselves by appropriation, and also pleaded the statute of limitations. Special issues, including that of abandonment by plaintiff, were submitted to a jury, which issues were found in favor of the defendants. Thereafter the court made findings of its own, wherein certain findings of the jury were adopted, and others made to conform with the court’s own views. Conclusions of law were also stated, and upon these the court made a decree that the defendants were the owners of the right to the use of the water in controversy. Plaintiff thereafter moved for a new trial, which motion was overruled.. Plaintiff appeals from *379the judgment and order overruling the motion for anew trial. The action was commenced August 27, 1888, and has been before this court once before. (Haggin v. Saile et al., 14 Mont. 79, 35 Pac. 514.)
We have repeatedly gone over the testimony had upon the trial of this case, giving it our close attention, while considering the argument of appellant that the evidence is insufficient to justify the findings of the court and jury; and our conclusion is that the evidence is sufficient to sustain the finding and conclusion upon the material point- that plaintiff abandoned any rights he may have had to the usufruct of the waters in controversy. To set forth the evidence contained in the record upon this question is unnecessary — we merely state the conclusion which we have reached.
It is said the court failed to find abandonment as a fact, but only so found as a conclusion of law. The jury expressly found abandonment, while the court found, as a fact, that, after the latter part of 1883 plaintiff never at any time made use for any purpose of any of the waters in controversy; and as a conclusion of law the court stated that plaintiff, prior to the bringing of this suit, abandoned whatever right he had to the use of the water.
Conceding that the finding that the plaintiff never used the waters in controversy after some time in 1883 is defective as a finding of an abandonment, still the plaintiff is in no position to ask a reversal in this Court, because he failed to follow the Code of Civil Procedure, by pointing out the defectiveness of such finding, and because he failed to preserve his exceptions, if there was a failure on the part of the lower court to remedy the defect. The statutes (Section 1114 et seq., Code of Civil Procedure) provide that in cases tried by the court no judgment shall be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings, and, in cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be ■ specifically and particularly designated, *380and, upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his. exceptions, and the same shall be settled by the judge as in other cases. This rule applies to equity as well as law cases. (Hayne on New Trial & App. Sec. 2M.)
It is our opinion that the present Codes (section 1111 et seq.) recognize the system of implied findings, and that, under that system, where there are defective findings the judgment appealed from will not be reversed unless requests and exceptions were made and saved: (Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.) Hayne on New Trial & App. Sec. 238, traces the history of the statutes of California upon the subject of implied findings, and notes the difference between such a system and one of express findings. He demonstrates that, as the Codes are now in this state, it is incumbent upon the losing party to take proper steps to except to the defects in the findings of fact, pointing out the particular omissions of which he complains, and that, if he does not proceed according to the statutory requirements in this respect, he cannot secure a reversal for defects in the findings'filed; “all omitted issues being presumed to have been found in favor of the party for whom judgment was rendered.” “In consequence of this presumption,” he continues (section 239), “the losing party could never have a reversal upon the findings unless they were entirely inconsistent with the judgment, and could not be reconciled with any state of facts which might have been proved, and upon which the judgment, might be supported.” The presumption then prevails that the omitted issues necessary to supply the defects in the findings upon the abandonment by plaintiff have been found in favor of defendants, so we will not reverse the judgment upon the finding which appears in the record.
The evidence also sustains the finding that during June, 1883, defendant Saile settled upon the land he claims, and made an appropriation of all the waters of Glover’s canyon flowing by his home, for agricultural and domestic uses, and that he has used such waters for beneficial purposes upon his land ever since.
*381These matters are determinative of the case, requiring an affirmance of the order and judgment appealed from. The suggestion that the plaintiff has rights as a riparian holder can have no force as against defendant Saile, who, in June, 1883, actually diverted and appropriated water for beneficial uses under the statutes of the territory recognizing the right of appropriation.
It is said the court erred in its view of the law as to what constituted an abandonment. We do not think so. If we could refer at all to the instructions to the jury, to ascertain the views entertained by the learned judge upon the law of abandonment, — and it is to them that plaintiff goes, — it is disclosed that he regarded it as a question of fact, to be determined from the acts and intention of the party who was alleged to have abandoned the rights in controversy, and such acts and such intention should be gathered from all the facts and circumstances in the case. He did not decide the point against plaintiff upon the theory that mere nonuser of a water right by itself constituted an abandonment, but he proceeded upon the line that a voluntary nonuser of water by a purchaser qf a water right, without any intention to resume use thereof, and without the assertion of possession or title fqr a number of years after purchase, and where such a purchaser has permitted the water to be taken, appropriated and used by others adversely for a period of years, warranted an inference of abandonment. This we believe is thoroughly correct on principle.
It is urged that certain instructions given to the jury were erroneous. But, if they were, we will not reverse a judgment in an equity case because of. erroneous instructions upon certain issues, where the court exercised its independent judgment in making its own findings of fact, and where such findings are supported by the evidence, without regard to the issues found by the jury. That is this case, for the verdict of the jury was not conclusive upon the questions submitted, —it was advisory only, — and the judge made his own findings, approving some of those found by the jury, and making *382some of his own. By this action, all the findings that he made, whether or not in harmony with those that had been made by the jury, became the court’s findings, and, if supported by the evidence, must be upheld, -notwithstanding an erroneous charge to the jury. It follows that an erroneous instruction could do plaintiff no injury, if the findings of the court were justified by the evidence, and the determination of that question is made by sifting the facts without regard to the action of the jury. (Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Sweetser v. Dobbin, 65 Cal. 529, 4 Pac. 540; Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965.) Possibly exceptional cases may arise where this rule should not be applied, but the present is not one of them. We therefore place our affirmance upon the issue of abandonment, which was decided by the court against plaintiff. This decision is sustained by the evidence.
Various errors are assigned upon rulings in the admission and exclusion of evidence, but we find no error affecting the issue of plaintiff’s abandonment.
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Brantly, being disqualified, took no part in this decision.