(dissenting).
I dissent.
Prior to 1890 the Plaintiffs’ predecessors in interest dug canals and took the waters of the North Fork of Smith River and used them for irrigation purposes. On August 30, 1890 the District Court from Meagher County issued a decree adjudicating the waters of Smith River; in doing so the District Court followed the customary practice of awarding about one inch per acre of irrigated land. This practice took into consideration the fact that the adjudications were actually applicable only at times when the water supply was short and the court was attempting to spread the available water among as many landowners as possible. There is no doubt that after 1890 the water users on the North Fork of Smith River, and in fact the water users on all of Montana’s decreed streams, continued to use much more water during the high water or flood-water season; neither is there any doubt that such floodwaters were always put to beneficial use.
In 1935 the state of Montana filed a Declaration of Intent to Store, Divert and Control the unappropriated waters of the-North Fork of Smith River. Within four years thereafter the state built a dam and a reservoir capable of holding 11,000' *218acre feet of water. In the years following the construction of the dam the state always sold about three-fourths of that stored water to the Plaintiffs herein, who needed and used that water on their lands in addition to the waters decreed to them by the 1890 decree. This fact alone should establish the need by the Plaintiffs for water in addition to what they were allowed by the 1890 decree, and should also establish that the flood-waters had always been needed and put to beneficial use.
Recently the state built a canal to carry floodwaters from the North Port of Smith River to an area outside the Smith River drainage. The state contended they had the right to do this because by their 1935 Declaration of Intent they had acquired ownership to all waters that were not decreed by the 1890 decree. The Plaintiffs thereupon brought this action to prevent the state from removing the floodwaters from the Smith River drainage; the Plaintiffs contended that as far back as 1890 they had appropriated and had acquired a right to the use of the floodwaters, and that the mere filing of a Declaration of Intention by the state in 1935 did not deprive them of their existing rights.
The majority opinion attempts to interpret the words “unappropriated waters” in the state’s Declaration of Intent as meaning waters that had not theretofore been decreed to some person. That such was not the legislative intent should be obvious from the existing facts, and is certainly borne out by the recent legislation wherein the State Legislature stated that existing rights should be honored and that decreed rights were only one of the means of ascertaining the existing rights.
The District Court held in favor of the Plaintiffs, and the District Court Judge made some very accurate Findings of Fact and Conclusions of Law and held that the Plaintiffs had existing rights to the floodwaters of the North Fork of Smith River, which existing rights were in excess of the decreed rights which were applicable in the later irrigating season when the water supply was short.
*219The District Court decree should be affirmed. However, it should be modified in two particulars:
The District Court decree should be modified by granting the state a decreed right to store 11,000 acre feet of flood-waters, which decreed right should be subsequent' to the 1890 decreed rights, but prior in time to the Plaintiffs’ floodwater rights;
The District Court decree should also be amended by granting to the state of Montana a decreed right to those floodwaters in excess of the floodwater rights granted to the Plaintiffs by the District Court.