On Petition for Rehearing.
Mr. Justice Beandelivered the opinion.
4. A careful re-examination of the record has only confirmed *59the views heretofore expressed. The principal complaint seems to be that the decision is pnt on a question not in issue; counsel for plaintiffs insisting that the answer does not allege a prior appropriation of the waters of Buck Creek by Martin, the defendants’ grantor. The defendants, after describing in their answer the lands owned and possessed by them, allege—
‘ ‘ That the whole of said lands are valuable agricultural and farming lands; that for more than seventeen years next preceding the filing of the complaint herein the defendants and their grantors have possessed, occupied, cultivated, used, and improved all of the aforesaid lands, and during all of said times have annually harvested therefrom large and valuable crops of hay, grain, and vegetables, and have pastured large numbers of horses and cattle thereon; that the climate in which said lands are situated is arid, and irrigation is necessary thereon during the months of April, May, June, July, August, September, and October of each year, in order to produce thereon a valuable or any crops, and that said months constitute the irrigating season in the district in which said lands are situated; that with proper irrigation said lands yield annually large and valuable crops of the aforesaid staple products, which without such irrigation they would not do, but would become barren, sterile, and worthless; that immediately west of south of said lands there is a spur or branch of the Yampsay Mountains, known as the ‘Buck Creek Range,’ upon and among which springs and melting snow give rise to and form a stream commonly called ‘Buck Creek,’ which flows and has flowed always in a north and northeasterly direction to and upon defendants ’ said lands; that the said Buck Creek is the same and identical natural stream described in the plaintiffs’ amended complaint herein; that said Buck Creek has a natural and well-defined bed and banks to and upon the lands of the defendants herein described, and that the natural channel of said Buck Creek from its source reaches and extends to defendants ’ said lands, and that the waters of said Buck Creek naturally flow, when unobstructed in their natural channel, to, upon, and over the lands of the defendants, and naturally irrigate and water the said'lands of the defendants, and have so flowed in their natural channel and course ever since the memory of man, and now do in their natural channel flow down said Buck Creek to,; upon, and over the lands of the said defendants hereinbefore described, and that by reason of such natural flow, seepage, and percolation, irrigate and- moisten *60and make fertile and valuable the said lands, and that the defendants’ said lands are riparian lands on and to the said Buck Creek; that, in addition to such natural flow as aforesaid, the defendants and their grantors, at various points and places on their said lands above described, have placed in the natural channel of said Buck Creek, at varioirs points on their said lands, small dams, and made head ditches therefrom, to assist and increase the irrigation of said lands, in addition to the natural flow thereof, and thereby have made fertile and valuable and irrigated the said lands with the natural flow of the waters of said Buck Creek, and have thus used of the waters of said Buck Creek, for the irrigation of their said lands, during all the times of their occupancy and use thereof, by themselves and their grantors, a sufficient amount thereof to irrigate about 650 acres of land, and that said quantity of land last named has been thus irrigated of and from the natural flow of the waters of Buck Creek as aforesaid during all of said time, and that the necessary amount of water thus to irrigate said land is about 300 inches, measured under a six-inch pressure, and that the use of the waters of Buck Creek, as aforesaid, through their natural flow, is a reasonable and necessary use thereof; that at the point and place designated in plaintiffs’ amended complaint herein is but a break in the bank of the natural channel of Buck Creek, and that all the defendants, or either of them, have had or done to the said break, as well as their grantors, was to keep and prevent said break from washing out to such an extent as to destroy the natural channel of said Buck Creek, and to prevent the waters of Buck Creek from flowing on and over the other portions of defendants’ said lands in the natural channel thereof as hereinbefore described • that said break is not a natural channel or a branch of Buck Creek; and that there was no natural channel of Buck Creek at the time of the commencement of this suit, or at any time before, extending to or upon the lands,, or any part of the lands, of plaintiffs, described in the amended complaint herein. ’ ’
The substance of the defense so alleged is that for more than seventeen years prior to the commencement of the suit the defendants and their grantors have possessed, occupied, and used the land now owned by them', through which Buck Creek flows, and have maintained dams in the stream at various points on their land, including the place designated as the east-
*61era or McCall branch, to keep the banks from washing ont and destroying* the natural channel, and to assist and increase the flow of water therein, and by means of such dams have been able to and have used 300 inches of water for necessary irrigating purposes, and thereby have raised annually large and valuable crops on their land. Now, Martin, as the evidence shows, is the grantor of the defendants; and, although the answer does not directly allege a prior appropriation by him, it is alleged that the defendants and their grantor (who was Martin) had for more than seventeen years prior to the commencement of the suit, and therefore prior to the acquisition by plaintiffs of any alleged rights to the waters of the so-called eastern or McCall branch, maintained dams along and in the bank of the creek for the purpose of increasing the flow of water in the main channel, and that the water thus confined to the channel is and has been used for necessary irrigation. This is an evident attempt by defendants to plead a right to the waters of the stream by appropriation prior in time and superior in right to that acquired by the plaintiffs; and, although the answer is, no doubt, defective because it does not allege in direct terms an appropriation by Martin, the defect is one of form, and not of substance, and, as no objection was made thereto either by motion or demurrer, was waived by pleading over: Creecy v. Joy, 40 Or. 28 (66 Pac. 295). Evidence was offered and admitted on the trial bearing on the question of Martin’s appropriation. The. court below, as appears from its opinion, deemed it an issue in the case, and much space is devoted to its discussion in the defendants’ brief, so that we feel justified in holding- that an appropriation of the waters of Buck Creek by the defendants and their grantor, prior in time to the acquisition of any rights thereto by the plaintiffs, is substantially pleaded as a defense to this suit; and the fact that the evidence was admitted over the objection of the plaintiff does not change the rule, as the same presumption will be indulged in to support the pleadings as if the objection came after trial: Specht v. Allen, 12 Or. 117 (6 Pac. 494); Currey v. Butcher, 37 Or. 380 (61 Pac. 631); *62Creecy v. Joy, 40 Or. 28 (66 Pac. 295); Patterson v. Patterson, 40 Or. 560 (67 Pac. 664).
The third separate defense set np in the answer relates to alleged appropriations made by the defendants personally after they acquired title from Martin. Nor can we agree with counsel that there is no evidence to show that Martin actually appropriated and used the waters diverted from the so-called McCall branch by his dam for irrigating purposes. The record is voluminous, and the testimony in some respects confusing, and it may be that the effect of the evidence of one or two of the witnesses is stated in the opinion more strongly than a critical examination of their testimony would seem to justify. But however that may be, it .quite clearly appears from all the testimony that from 1881 down to the time of the commencement of the suit' a dam had been maintained at the head of the so^alled McCall branch, and the water thereby diverted from such branch, and caused to flow down the main channel, and it has been used by Martin and the defendants for the necessary and reasonable irrigation of their land.
A contention is made that, prior to the construction of the rock dam by the defendants, enough water flowed down the so-called McCall branch to supply the plaintiffs’ needs, and therefore they could not complain of the construction or maintenance of the sod dam. The stream at the point where the sod dam was located is only 2 or 2y2 feet deep, and such dam was built as high as the banks, so that any water that went down from that point toward the McCall place must have been from the overflow. The evidence shows that the rock dam complained of is located at the same place where the dirt dam was; that it is no higher, and therefore can prevent no more water from flowing down toward McCall’s than the dirt dam did, so that, if plaintiffs have had less water since the construction of the rock dam than before, it was not because of such dam, but perhaps, as intimated by some of the witnesses, because settlers on the stream above have been diverting and using larger quantities of water than heretofore, and consequently the overflow has been lessened. The petition for rehearing is therefore denied. Rehearing Denied.