RESPONSE TO PETITION EOR REHEARING.
By the Court,
Hawley, J.:A re-examination of all the testimony contained in the transcript strengthens the convictions expressed in the former opinion, that 4 4 it does not appear from the evidence that the defendants acted in concert, or that the act of either, in any manner, produced the act of the other.” This being true, it follows, for the reasons stated in our former opinion,, that the action at law can not be sustained as against both defendants. A rehearing was granted, principally upon the ground that — conceding the correctness of the view's expressed in the opinion — it might not necessarily follow that the nonsuit .should be granted as against both defendants. The plaintiffs might have the right to dismiss as to one of the parties and proceed against the other. This question, however, has not been relied upon by the respondents.
We are asked to decide the equitable rights of the re*23spective parties, and determine whether or not, upon the facts disclosed in the record, the plaintiffs are entitled to an injunction.
The respondents admit, as the authorities declare, that the owner of an upper tract of land has an easement in the lower tracts to the extent of the natural flow of water from the upper to and upon the lower tract of land.
It is unnecessary to discuss the important, delicate and interesting questions that, under the improved methods of irrigation and improvement of agricultural lands, are liable to be raised as to the general right of the owner of an upper tract of land to flow the waste or surplus water used for irrigation from artificial means upon the lower lands of his neighbors. So far as the present case is concerned, it only presents the single question, whether the owner of the upper land, who has for more than five years enjoyed the undisturbed privilege of running the waste waters used from artificial sources for the purpose of irrigating his land, thereby acquires an easement by prescription to run the same over the lower lands in such unreasonable and unnatural quantities as to damage a drain ditch recently constructed by parties owning land below him, for the purpose of carrying off such surplus or waste water, as well as the waste water used in irrigating their own land.
The jury found, as stated in the former opinion, that, with the exception of the eighth of May, no more water flowed from defendants’ lands .than in previous years, and although they failed affirmatively “to find whether the defendants, or either of them, used anymore water upon their land than was proper and necessary to irrigate the same,” yet their other findings ivould seem to imply such to bo the fact. But, be that as it may, the court, in its judgment and decree, did expressly find that, on the eighth of May, the defendants did allow an “inordinate quantity” to flow down over plaintiffs’ lands. There is ample testimony to sustain this finding.
Under the decree the defendants are permitted to irrigate their lands by all reasonable use of the waters and by all convenient methods or systems of irrigation, and are only *24bound, to so regulate the enjoyment of this right “as not to materially injure the drain ditch of plaintiffs below their respective lands.”
We are of opinion that upon the facts disclosed by the record the plaintiffs are certainly entitled to the injunction as decreed by the court. Upon a review of the questions involved in this case we are also of the opinion that respondents should be allowed, within fifteen days after the filing of the remittitur herein, if they so desire, to remit the judgment for damages, and if so remitted then the decree ordering an injunction should remain. Otherwise a new trial must be granted.
The judgment of the district court, in so far as it awards damages against the defendants, is reversed, and the cause remanded for such further proceedings as are indicated in this opinion would be proper.
The costs of this appeal to be taxed against respondents.