On Rehearing.
(172 Pae. 97.)
Mr. W. G. Browley,. for the petition.
Mr. Harrison Allen, Mr. R. R. Johnson, Mr. Frederick Steiwer, Mr. Oliver P. Morton, Mr. Will R. King, Chief Counsel U. S. Rec. Service, Mr. James A. Fee, Mr. Stephen A. Lowell and Mr. James H. Raley, contra.
In Banc.
McCAMANT, J.A rehearing was granted in this case, not because we were dissatisfied with the conclusions reached by Mr. Justice Burnett, but because of the importance of the case and the earnest insistence of counsel for appellant that in the hurry of the Pendleton term no opportunity was given adequately to present the contentions relied on. The case has accordingly been reargued with ability and we have been favored with additional written briefs, strongly pre*391senting the contentions of the respective parties. With the assistance so rendered by counsel, we have reexamined the voluminous record.
Appellant’s petition for a rehearing acquiesces in so much of the original opinion as holds that the rights initiated in 1891 were lost by abandonment. We think that there is no room for difference of opinion as to the correctness of the conclusions announced in the former opinion on this subject.
The contention on the part of appellant which is most strenuously presented is that the Circuit Court erred in dividing appellant’s priorities, and in fixing its priority for 12,747.48 acres as of July, 1907. Appellant claims that its entire appropriation of water should be referred to March 14, 1903. The decree of the lower court awarded to appellant a water right with a priority as of the latter date applicable to 4,109.68 acres. The lands covered by this priority under the decree of the Circuit Court are lands lying between the headgate of appellant’s ditch and Butter Creek, including also some hundreds of acres west of Butter Creek, the priority covering substantially the bottom lands in the neighborhood of this watercourse. The lands as to which a 1907 priority is decreed lie west and north of the properties above referred to. They are all situate west of the Umatilla River and beyond the Butter Creek bottoms. Appellant’s claim to the priority contended for is predicated on its rights as the successor in interest of the Hinkle Ditch Company.
Appellant directs our attention to Section 6533, L. O. L. This statute is a part of the act of 1891. It requires the appropriator of water to commence the actual construction of his ditch within six months from the date of posting his notice of appropriation. The statute directs that:
*392“The actual capacity of said ditch or canal, or flume, when completed, shall determine the extent of the appropriation, anything contained in the notice to the contrary notwithstanding.”
If appellant’s rights are to he determined by this principle, we are driven to the conclusion that appellant was liberally dealt with by the decree appealed from. It appears from the testimony of H. D. Newell that he measured the water in the Hinkle ditch on January 16, 1906, which was four months subsequent to the time when the rights of the United States attached. He found that the ditch, eight miles from the headgate, was carrying 39.9 second-feet of water. The testimony shows that this amount of water would scarcely suffice for the irrigation of the lands as to which appellant was awarded a 1903 priority.
7. In response to so much of the previous opinion as quotes the notice of appropriation posted by Hinkle Ditch Company March 11,1903, appellant cites Section 6595, subdivision 7, L. O. L. This statute is as follows:
“Where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder has been in good faith commenced and diligently prosecuted, such appropriations shall not be set aside or avoided, in proceedings under this act, because of any irregularity or insufficiency of the notice by law, or in the manner of posting, recording, or publication thereof.”
If it appeared that the notice of appropriation under which appellant claims was inaccurate through some mistake in drawing it, appellant could invoke the curative effect of the above statute with propriety. But it affirmatively appears that there was no such mistake.
Mr. J. T. Hinkle, president of the Hinkle Ditch Company, which made the appropriation, was better *393qualified than any other witness to testify as to the intention of this company at the time when the appropriation was made. He was asked the following question:
“The location notice as filed by the Hinkle Ditch Company in 1903 properly expressed the intention of the Company, did it, in regard to the irrigation of the lands?”
He answered:
“I think it fairly expressed the intention.”
The notice of appropriation described a ditch or flume extending a distance of twelve miles to Butter Creek. The map filed at the time the appropriation was made, pursuant to the requirements of Section 6529, L. O. L., covered no lands as to which the decree of the lower court gave appellant a 1907 priority. The ditch noted on this map terminated at Butter Creek.
Mr. Hinkle and Mr. O. D. Teel were the promoters of the Hinkle Ditch Company and were more familiar than anyone else with its plans at the time when its appropriation of water was made. Mr. Hinkle testifies:
“We proposed to build that canal on there and irrigate all the land that it would irrigate in any practical manner and to reach all the land we could reach by extension of it, and at that time we had no permanent surveys of our own, we were depending on some very uncertain preliminary work, and upon such record of previous surveys as we could find and we aimed to make the appropriation large enough to provide for ourselves, and to provide for the government who was then doing some geological work in the neighborhood and preliminary work, and to provide for any other people who might come in and enlarge our canal and make use of it.”
This testimony tends to show that the Hinkle Ditch. Company hoped that its enterprise would prove to be *394one of large dimensions. It is apparent that the plans were ill-defined and lacked the precision essential to the creation of the rights now contended for. Mr. O. D. Teel testifies on this same subject as follows:
“Q. What was the purpose of the Hinkle Ditch Company, and what lands in a general way did it intend to irrigate when its appropriation was made?
“A. We expected to irrigate all lands lying under the ditch that were not provided for by prior appropriations of other ditches.
“Q. Had you at the time you made the appropriation, determined definitely what lands would ultimately fall under the system, when built?
“A. They were largely on Butter Creek bottom, and beyond Butter Creek, principally beyond Butter Creek.
“Q. How did they correspond with the lands at present coming under the system?
“A. They were about the same, if not practically the same proposition.”
! It appears that in 1903 and 1904 a number of homestead entries were made on the properties as to which a 1907 priority was awarded appellant. Mr. Teel testified with reference- to the irrigation of the lands of these homesteaders as follows:
“Q. Were the homesteaders expecting to get water from the Hinkle Company?
“A. When they went in there, I think they did not.
“Q. Did they later on, when the Hinkle Company started out to cover that section with its ditches?
“A. As I remember, they tried to make some contracts with us and didn’t have any money and could not give any security and we could not build down in there to irrigate just what few there were in there, what few lands were available under the circumstances, that had something to do with the size of our headgate, the second one we put in there.”
Mr. Hinkle testified on this same subject as follows:
*395“Q. Do you. recall the time when these homestead entrymen attempted to get the Hinkle Ditch Company to construct a ditch down there?
“A. Yes, sir, I recollect it.
“Q. Do you recall that the Hinkle Ditch Company said, if they would construct the ditch themselves they would deliver water to them down there?
“A. Possibly, if at that time they wanted to get the ditch down there, they would either have to build it themselves or pay the Hinkle Ditch Company enough money on water rights to enable the Hinkle Ditch Company to build it.
“Q. That was about the summer of 1907, wasn’t it?'
“A. No, that was along about 1905.”
8, 9. We think the general testimony of Mr. Hinkle and Mr. Teel as to the purposes of Hinkle Ditch Company when it made its appropriation must yield to the specific testimony to the effect that the. company did not intend, in 1905, to extend its ditches into the tracts of land as to which a priority of 1907 was awarded. The attitude of Mr. Hinkle and Mr. Teel with reference to this extension negatives the claim that in 1905 or at any time prior thereto the Hinkle Ditch Company had any matured plans for the reclamation of lands lying west and north of the Butter Creek bottoms. Most of these lands were withdrawn from entry by the General Land Office on March 17, 1901, and were not restored until October 2,1907.
The testimony clearly shows that at the inception of its undertaking the Hinkle Ditch Company constructed a ditch one and one-half miles in length. During the latter part of 1903 and during the years 1901 and 1905 but little work was done on the ditch by the Hinkle Ditch Company, and that little had to do with repairs and improvements, rather than with extensions. The extension work which was done during that period *396was done by the Butter Creek Water Company and the Cold Springs Irrigation Ditch Company, under contracts made by them with Hinkle Ditch Company. The former corporation was interested in the irrigation of lands in the Butter Creek bottoms, and the latter in the irrigation of lands on the east side of the Umatilla River, now included in the government project. The work done by these corporations did not look to the irrigation of the twelve thousand acres as to which this appellant was given a 1907 priority. It is doubtless true that appellant, as the successor in interest of the Hinkle Ditch Company, is entitled to avail itself of the work done on the ditch by these corporations, but we fail to find in the evidence any intimation that this work looked to the irrigation of the lands with which we are concerned on this appeal. It is intimated by Mr. Justice Wolverton in Nevada Ditch Co. v. Bennett, 30 Or. 59, 94 (45 Pac. 472, 60 Am. St. Rep. 777), that where an appropriator acquires an inchoate right to water for purposes of irrigation, he may apply this water to lands other than those which he originally intended to irrigate. He may appropriate water with intent to irrigate Whiteacre, which Ee owns, and, if he proceeds with due diligence, he may use the right so initiated for the irrigation of Blackacre, providing it be equivalent in area and in its water requirements. In order that this doctrine may be properly applied there must be a continuing intention to irrigate a well-defined acreage. If the intention to irrigate Whiteacre is abandoned before the intention to irrigate Blackacre becomes fixed, the water right is lost. The evidence clearly shows that the intention to irrigate the lands east of the Umatilla River, now included in the Hermiston project of the federal government, was abandoned in the late summer of 1905, *397at the time when the government project took definite shape. The evidence strongly negatives any intention of the Hinkle Ditch Company at that time, or for a year or more thereafter, to irrigate the properties lying west and north of the Bntter Creek bottoms, as to which a 1907 priority has been awarded appellant. It appears that this was a period of discouragement to the officers of the Hinkle Ditch Company. Their resources were exceedingly limited and on at least one occasion they offered to dispose of their project for a small sum of money.
It remains to apply the law arising on the above facts. In 2 Kinney on Irrigation and Water Eights (2 ed.), page 1221, it is said:
“In connection with the claim set forth in the notice, the court may also examine all the other facts in any particular case which tend to prove the actual intent of the appropriator. Such facts may be such as the purpose indicated in the notice, the actual amount of water required for such purpose, the acts of the appropriator in prosecuting the work necessary, the size of the ditch and its capacity, the method of diversion from the stream, the method of the application of the water, and any other facts which tend to show the true purpose of the appropriator.”
Pomeroy on Eiparian Eights (1 ed.), Section 47, says:
“There must be some such actual, positive, beneficial .purpose, existing at the time, or contemplated in the future, as the object for which the water is to be utilized; otherwise no prior and exclusive right to the water can be acquired.”
In Power v. Switzer, 21 Mont. 523, 530 (55 Pac. 32), the court says:
“The intention of the claimant is a most important factor in determining the validity of an appropriation *398of water. When that is ascertained, limitation of the quantity of water necessary to effectuate his intent can be applied according to the acts, diligence and needs of the appropriator.”
In Andrews v. Donnelly, 59 Or. 138, 147, 148 (116 Pac. 569), Mr. Justice Burnett says:
“The right of a prior appropriator is paramount but'the right is limited to such an amount of water as is reasonably necessary for such useful purpose and project as may be fairly within contemplation at the time the appropriation is made. * *
“Any material enlargement of an original project or the inauguration of a new enterprise requiring additional water would call for a new appropriation which must be in subordination to the rights of others as then existing.”
These principles are also announced in Simmons v. Winters, 21 Or. 35, 42 (27 Pac. 7, 28 Am. St. Rep. 727); Hindman v. Rizor, 21 Or. 112, 120 (27 Pac. 13); Union Mill Co. v. Dangberg, 81 Fed. 73, 106; Ortman v. Dixon, 13 Cal. 33, 38. The formation of a new intention to irrigate lands the irrigation of which was not at first contemplated marks the beginning of a new appropriation: Nevada Ditch Co. v. Bennett, 30 Or. 59, 100 (45 Pac. 472, 60 Am. St. Rep. 777); Taughenbaugh v. Clark, 6 Colo. App. 235, 243 (40 Pac. 153); Toohey v. Campbell, 24 Mont. 13, 17 (60 Pac. 396).
On the whole case, we are satisfied that the Hinkle Ditch Company, appellant’s predecessor in interest, had no well-defined and continuing plan prior to September 6, 1905, for the irrigation of lands lying west and north of the Butter Creek bottoms. The decree of the lower court was liberal, as we read the evidence, in its allowance to appellant of the lands covered by its appropriation of March 14, 1903. The-*399rights of the United States, which became fixed September 6, 1905, are certainly prior and paramount to those of this appellant, in the irrigation of the 12,747.48 acres as to which a priority of 1907 is awarded.
10. Appellant also contends that the Circuit Court erred in awarding the United States three hundred and 'fifty cubic feet of water per second and in failing to make this allowance conditional on the diligence of the government in completing its project. This portion of the decree followed the plain mandate of the statute, Section 6588 L. O. L. This portion of appellant’s petition argues a legislative, not a judicial question. By the statute quoted in the previous opinion the legislature withdrew from further appropriation the waters of such streams as the United States should elect to utilize in the manner therein pointed out. The United States has accepted the grant and conformed to the terms thereof. The legislature could not displace water rights which had vested prior to the acceptance by the United States of the provisions of the statute, but the plain precept of the law vests the United States with title to all waters not theretofore appropriated. The claim of the government is limited to three hundred and fifty cubic feet, but this claim must be sustained regardless of the diligence of the government in matters not specified in the statute, and regardless of the amount of water required to irrigate the lands served by the government ditches.
11. The Circuit Court made a finding on the subject of contracts between irrigation companies and water users to whom they supply water. It was provided:
“Such contract may provide for any reasonable and uniform method of pro rata distribution of water, and *400such person, firm or corporation may make such, reasonable and uniform rules and regulations as may be necessary to facilitate such distribution. In case sueb contract does not provide for such distribution of water then such water shall be supplied to the water users in the order of, and according to the date of priority of use upon the land, or at the place upon which such water is to be used. * *
“All contracts for the use of water giving-any preference other than as herein stated, are against the public policy and laws of the State of Oregon, and void.”
It is contended that the priority as between appellant’s water users should be based on the dates of their contracts. In Mann v. Parker, 48 Or. 321, 323 (86 Pac. 598), Mr. Chief Justice Bean says:
“An appropriator of water acquires a right therein only to the extent to which it is applied to a beneficial use.”
This is also the doctrine of Claypool v. O’Neill, 65 Or. 511, 514 (133 Pac. 349). A party holding a contract with appellant for the use of water should be required to apply the water to a beneficial purpose or to yield his priority to one who does make such beneficial use of the water. The foregoing was one of the incidental provisions of the decree and it was properly incorporated therein, although the subject was not mentioned in the claims filed by the parties.
A great deal of testimony was taken on the subject of seepage and evaporation. This testimony was contradictory, but the conclusions of the Circuit Court are supported by cogent proof and we are not convinced that they should be modified.
12. Our attention is directed on the rehearing to the following provision in the decree of the Circuit Court:
*401“That the specifications of a definite amount of water per acre, in these findings, shall not be taken as granting that specific amount of water to any water user, but shall only be taken as a rule and guide for the water-master in the distribution of a maximum amount of water to any water user.”
As a result of this burdensome litigation the parties are entitled to have their rights determined. The conclusions reached are not to be disregarded and lightly set aside. The duties of water-masters are defined by Section 6617, L. O. L., and are in part as follows:
“It shall be the duty of the said water-masters to divide the water of the natural streams or other sources of supply of his district among the several ditches and reservoirs, taking water therefrom, according to the rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the headgates of ditches, and shall regulate or cause to be regulated, the controlling works of reservoirs, in time of scarcity of water, as may be necessary by reason of the rights existing from said streams of his district.”
The water-master is an administrative officer charged with the duty of carrying out decrees fixing water rights. The provision above quoted from the decree vests the water-master with large powers out of harmony with the statute and with sound principles. That portion of the decree will be eliminated.
13. The Dillon Irrigation Company presses its contentions upon us with great earnestness. It is argued that proceedings for the determination of water rights are sm generis and that it has been determined in Hough v. Porter, 51 Or. 318, 437-440 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728); that in such a proceeding relief can be given in this court to a party who has not appealed. As we read the authority cited, it holds *402that where an appeal in a proceeding for the determination of water rights brings before the appellate court the parties entitled to the water, the court will pass such a decree as appellant is entitled to under the law and the evidence, even though such decree be more favorable than that of the lower court to parties who have not appealed. The questions urged by the Dillon Irrigation Company are not involved in the appeal of Western Land and Irrigation Company, nor has that appellant shown a right to have the decree of the Circuit Court modified except in the matter of administration above referred to. If we were to entertain the contentions of Dillon Irrigation Company we would review the decree at the instance of a party who has not appealed and our conclusions would be extrajudicial. Such action on our part would violate principles repeatedly reaffirmed and unquestionably sound: Thornton v. Krimbel, 28 Or. 271 (42 Pac. 995); Goldsmith v. Elwert, 31 Or. 539, 549 (50 Pac. 867); Board of Regents v. Hutchinson, 46 Or. 57, 58 (78 Pac. 1028); McCoy v. Crossfield, 54 Or. 591, 592 (104 Pac. 423); Mathews v. Chambers Power Co., 81 Or. 251, 255 (159 Pac. 564).
The decree will be modified in the respect above indicated. In all other respects the decree is affirmed and the former opinion is adhered to.
Modified on Rehearing.
Mr. Justice Bean took no part in the consideration of this case.