Decided 16 August, 1901.
On Motions for Rehearing.
Mr. Chief Justice Beandelivered the opinion.
6. Both parties have filed petitions for rehearing. The plaintiffs insist that the court erred in not hold*47ing that the right of a riparian proprietor to use the waters of a stream for irrigating purposes does not extend beyond the watershed, or to lands not first segregated and sold by the government. This question was examined with great care before the opinion -was formulated. No authorities are cited or arguments advanced in the petition for rehearing not then fully examined and considered, and therefore the conclusion heretofore reached will be adhered to.
7. The defendant contends that the court erred in affirming that part of the decree which restrained him from using the water to the actual and perceptible injury of the plaintiffs, and in not decreeing that he recover costs and disbursements in the court below. The argument is that since the court held that he is entitled to use the water to irrigate all his land if he does not thereby interfere with the correlative rights of the other riparian proprietors, and as the evidence did not show that he had actually so interfered up to the time of the trial, the complaint should have been dismissed. This position overlooks the fact noted in the original opinion that the defendant sets up in his answer an absolute right to divert two thousand six hundred and seventy-five inches of water from the stream, and had actually constructed a ditch for that purpose, tapping the stream one and one half or two miles above his premises, through which he was threatening to take the water at the time the suit was commenced. It was to prevent any future contention that this claim or the use of the water thereunder had ripened into an adverse right as against the plaintiffs that the decree was so framed; and such a decree is manifestly within the power of a court of equity. The fact that defendant had not used the entire amount of water up to the time of the trial, and that plaintiffs *48did not prove actual damage, constitutes no objection to the maintenance of the suit or the form of the decree : Cache La Poudre Reservoir Co. v. Water Supply & Storage Co. - Colo. - (62 Pac. 420). It was this avowed determination of the defendant, no doubt, that influenced the trial court to decree that he pay the costs, and its conclusion will not be disturbed, as there does not seem to have been any abuse of discretion : Dimmick v. Rosenfeld, 34 Or. 101 (55 Pac. 100). The petitions for rehearing are therefore denied. Rehearing Denied.