*301Decided October 6, 1908.
On Motion foe Reheaeing.
[97 Pac. 539.]
Me. Chief Justice Beandelivered the opinion.
Neither party is satisfied with the decree heretofore rendered. Plaintiffs claim that the court erred in awarding defendant Altnow a prior right, by appropriation, to 150 inches of water from Warm Springs Creek; and for defendant Altnow it is insisted that the court erred in holding that he could not use the water so appropriated on land west of the creek, when needed by plaintiffs or other parties to the suit, and that Stallard, as riparian owner, is not entitled, as against plaintiffs, to a superior right to use water for irrigating land owned by him and which was filed on prior to the initiation of plaintiffs’ rights.
The quantity of water to which Altnow is entitled is measured by the purposes of his appropriation and the amount he put to a beneficial use within a reasonable time thereafter, not exceeding the amount of such appropriation. Upon this point the evidence is not clear. No witnesses testified, with any degree of accuracy, as to the amount of land he had under cultivation and upon which he used the water. The evidence consists of merely the opinion of witnesses, which vary largely. Our best impression, from the entire testimony, was that he . is entitled to 150 inches, and a re-examination of the record confirms us in that view. Altnow’s position is that he is entitled to use the entire amount of water appropriated by him, if he needs that amount, “anywhere, for any purpose, without reference to any one else, and irrespective of that use upon others.” In other words, his claim seems to be that by his appropriation he acquired a prior right to the amount of water appropriated by him, and is entitled to use it at any time or'place, provided he needs it and puts it to a beneficial use.
*30214. But this is not the law as we understand it, if the contemplated change in the use will injuriously affect rights which have been lawfully acquired subsequent to his appropriation. “The right of an appropriator of water,” said Mr. Justice Field, “is limited-in every case in quantity and quality by the uses for which the appropriation is made”: Atchison v. Peterson, 87 U. S. (20 Wall.) 514 (22 L. Ed. 414). Or, as said by Mr. Chief Justice Lord: “The measure of the right of the first appropriation of the' water, as to extent, follows the nature of the appropriation, or the uses for which it is taken. The needs or the purpose for which the appropriation is made is the limit to the amount of water which may be taken”: Simmons v. Winter, 21 Or. 35 (27 Pac. 7: 28 Am. St. Rep. 727). And the rule is thus concisely stated by Mr. Chief Justice Moore: “The appropriation of water to a beneficial use is founded upon the rule of necessity, which, when satisfied, becomes the measure of the right, whereupon subsequent appropriators may use the surplus of that to which the prior appropriator is entitled when not necessary to his use”: Mattis v. Posner, 37 Or. 523 (62 Pac. 17, 632). There may, therefore, be numerous appropriations of water of the same stream, and for use at different times and seasons, or for different purposes: McCall v. Porter, 42 Or. 49 (70 Pac. 820, 71 Pac. 976). And after the rights of subsequent appropriators have attached, the prior appropriator cannot change or extend his use to their injury: Cole v. Logan, 24 Or. 304 (33 Pac. 568); Bolter v. Garrett, 44 Or. 304 (75 Pac. 142); Proctor v. Jennings, 6 Nev. 83 (3 Am. Rep. 240). An appropriator of water, it is true, may change the point of diversion or place of use, so long as he does not thereby injure or affect the rights of others, because in such case they have no ground for complaint. But he cannot extend the use, so as to injure or interfere with subsequently acquired rights.
*303Altnow’s appropriation was made for the purpose of irrigating land east of the stream. By such appropriation he acquired a prior right to water sufficient for that purpose. He did not, however, acquire title to the water, but only the right to use it for the purposes for which it was appropriated. When not needed for that purpose, it was subject to appropriation by others, and he cannot subsequently change or enlarge his use to their injury. The contemplated use by him of water on land west of the stream would, we think, be a material extension of the rights acquired by him. as riparian appropriator, and might seriously injure or affect the rights of subsequent appropriators. Of the land owned by Stallart which was filed on prior to the initiation of plaintiffs’ rights, but 40 acres (N. W. % of S. E. % of section 8) are riparian to Warm Springs Creek. The remainder is on Cottonwood Creek, the waters of which, as we understand it, are not in controversy in this suit. As to the land riparian to Warm Springs Creek, as riparian proprietor, his right is superior to the rights of plaintiffs; but there is nothing in the present record by which any definite quantity of water, can be awarded, if, indeed, that could be done under any circumstances.
Petitions for rehearing denied.
Modified. Rehearing Denied.