concurring:
In this case I concur in the judgment of the court upon the following grounds:
The defendants, by their answers, admit and justify the diversion of the waters of Currant Creek above the Slaght Springs, asserting that they did not naturally flow down to *249that point in the bed of the stream, and consequently that plaintiff could have made no appropriation of any waters except those of the springs. They claim for themselves a prior appropriation of all the waters of the creek flowing above the springs. Such being the defense set up, if the plaintiff could prove that the waters of Currant Creek did naturally flow down to his premises, that he made an appropriation of the whole or any part of the water flowing from above the Slaght Springs prior to any appropriation by the defendants, and that they afterwards diverted the whole of the water above the springs at times when he needed it, and by virtue of his appropriation was entitled to it, — upon such a showing the court should at least have decreed the amount of water that he had first appropriated, enjoined the defendants from any future diversion of so much water, and given him a judgment for his costs, and that whether he proved any specific amount of damages capable of being exactly assessed or not. But the court, among other findings upon which it bases the judgment against the plaintiff for costs, finds that he contributed to his own damage by not making use of all the water that he might have used. That is to say, the court holds, that if a man is deprived of three-fourths of the water he is entitled to by the wrongful act of another, he can obtain no relief, legal or equitable, if he has allowed any portion of the remaining fourth to run to waste, because he has thereby contributed to his own damage. It is scarcely necessary to say that the doctrine of contributory negligence has no application to such a case, and consequently that the finding in question is wholly immaterial.
The judgment must, therefore, be sustained upon the other findings if sustained at all. In all the balance of the findings there is but one material fact asserted, and that is, in effect, that Currant Creek does not naturally flow down to plaintiff’s premises, but sinks above the Slaght Springs; all the rest is merely argument to prove this fact or deduction from it, and the finding is opposed to all the testimony in the case. It is, moreover, inconsistent with the *250other finding, that plaintiff contributed to his own damage; for to say that plaintiff contributed implies that the defendants also contributed, and they could only contribute by diverting water which would have flowed down to plaintiff except for their diversion. The motion for a new trial should have been allowed.