(dissenting).
I dissent. The situation, in brief, is this: The grantors of plaintiff, in 1890, located on land along the lower portion of the stream, and appropriated from it all the low water, with which they irrigated and had under cultivation about 120 acres of land. The evidence shows without dispute that the ' stream in low-water seasons generally would irrigate not to exceed one-hundred acres, and that during the low-water seasons all the water of the stream was taken out by them in 1890 and 1891, and by means of ditches was conveyed upon their lands. At the commencement of the irrigation seasons, and at the time of the melting of snow, there generally was plenty of water for everybody, and in the spring was sufficient to irrigate about three-hundred acres. But for the two years prior to the commencement of the action there was water only sufficient to irrigate one-hundred acres. The flow of the stream is very erratic, depending upon the prevailing weather conditions previous to the irrigation season. In 1890 the defendant and her husband settled on lands along the upper portion of the stream, but took no'water from it until 1891, *231and in that year, as testified to by the defendant herself, took sufficient water to irrigate six acres. In 1892 they cleared about fifteen acres, in 1893 about ten acres, in 1894 three acres, and in 1895 five or six acres, or about forty acres in all. The manner in which the defendant used the water characterizing it as not an adverse user against plaintiff’s grantors is best shown by the testimony of the defendant herself: “I knew there were some people down on the creek below that took out water before I did. I never intended to deprive them of water. I never turned off any water with that intent. At the time I went there, as far as my knowledge goes, there was water enough in the stream to irrigate the lands below me that were under cultivation. I would not say that there was not water enough in the stream to irrigate these lands in 1894, in 1897, and in 1898. I went there to make a home, and intended to bring land under cultivation. I knew that Mr. Johnson was down below making a home the same way that I was, and that he was there one year before me. I knew that Mr. lee was down there making a home; that he was there when I came there, and that he had the same intentions as I; and that Mr. Campbell was there making a home; and that Mr. Hall and Mr. Russell were there making homes, the same as I was. I had no reason to believe that their intentions in regard to making a substantial home were different from mine.” All these persons were grantors of the plaintiff Mr. Lee, the largest owner, and who hád something over eighty acres under cultivation and irrigated from this stream prior to the defendant taking any water at all, also testified: “During the past thirteen years since I settled there, several years I have had plenty of water to raise crops upon my land. I had plenty in 1894, and plenty in 1897 and 1898, and other years besides. When I first went there, there was plenty of water, but some- years since it has been dry. At no time since I have been there was there seven years continuously when I did not have water enough to raise my crops.” The record also shows that while the defendant increased her acreage from six acres in 1891 to about forty acres in 1895, the grantors of the plaintiff during the same *232time increased their acreage from 120 acres to something like 200 or 300 acres. This case is bnt one of many where during favorable winters, due to large quantities of snow falling, and other favorable climatic conditions, there is plenty of water for everybody; but where, owing to dry seasons and lack of snowfall, the quantity of the stream is greatly diminished, resulting in a scarcity of water for all; and where so-called “subsequent appropriators,” higher up the stream, infringe upon the rights of the first or prior appropriators below, and the trouble begins. Now, while it appears that the defendant every year from 1891 to the time of the filing of the complaint used water from the stream upon her land, the evidence is wanting that she took water which, by priority, belonged to the grantors of the plaintiff, and that such kind of taking and using was for a period of seven years, and was adverse to them. It is also true that at times she did take water which by priority belonged to the said grantors, yet the evidence is wholly wanting that such a taking was continuous, uninterrupted, and for a period of seven years, and was hostile and adverse to them. T'o the contrary, the evidence shows that when the rights of the said grantors in low-water seasons were infringed upon by the taking of their water, and when upon their request and demand that she turn it down the stream, she did so. To constitute an adverse user of water, it is not sufficient merely to show that one used water from the stream, but it must be shown that the water which by priority belonged to another appropriator was taken and used under claim of right or-title, and that the taker or user was in the peaceable, open, continuous, and uninterrupted possession thereof under such claim for a period of seven years. The law applicable to the adverse user of water is well stated in the following case:
“When there is sufficient water in the river to supply all parties, there can be no such thing as ad-. verse use of the water to start the statute of limitations running. Each is entitled to the use of the water, and it is only when the water becomes so scarce that all of the parties cannot be supplied, *233and that one appropriator takes water which by priority belongs to another appropriator, that there is an adverse use. The statute commences to run from the time when such adverse use is made of the water, the adverse use being only of that water which the prior party is entitled to. When there is a sufficiency of water in the river, the prior appropriator is not entitled to the water used by the subsequent appropriator, and the subsequent appropriator can use under his appropriation without being an adverse user.” (Egan et al. v. Estrada (Ariz.), 56 Pasc. 721; Anaheim Water Co. v. Semitropic Water Co. (Cal.), 30 Pac. 623; American Co. v. Bradford, 27 Cal. 361; Land & Water Co. v. Hancock (Cal.), 24 Pac. 645, 20 Am. St. Rep. 217; Faulkner v. Rondoni (Cal.), 37 Pac. 883; Church v. Stillwell (Colo. App.), 54 Pac. 395; 3 Farnham, Water and Water Rights, p. 2106.)
The evidence fails to show such a use of the water on the part of the defendant. If anything, it shows the contrary. When, therefore, the court found that the defendant, by an adverse use, acquired the right to the use of a certain quantity of the waters of the stream, it lacks support from the evidence.
Nor can I agree to an affirmance of the judgment on the theory that the defendant appropriated the water awarded to her by the decree. The court below found that the defendant’s right to the water was acquired by an adverse use, and not otherwise. No finding at all was made as to any appropriation of water by the defendant, or .as to any right acquired by her from an appropriation. The judgment rests alone upon the finding of an adverse user. However, on the theory of an appropriation by her, the evidence most clearly shows that she did not make any appropriation of the waters of the stream in low-water season . For the evidence, without dispute, shows that generally in low-water seasons the stream was sufficient to irrigate only one hum *234dred acres, and that in 1890 and 1891, before tbe defendant took any water at all from tbe stream, tbe low-water -bad all been appropriated by tbe grantors of plaintiff, and was all taken from tbe stream, and conveyed by means of ditches upon their lands, with wbicb about 120 acres was and bad been irrigated by them. It is plain what water was appropriated from tbe stream by tbe defendant was surplus water, and that tbe taking was subordinate to tbe prior appropriation and acquired rights of tbe said grantors. Nevertheless tbe court finds and decrees that tbe defendant, at tbe point of diversion by her, wbicb is tbe highest point up tbe stream, shall have “at all seasons of the year and at all times” tbe quantity of water found and' awarded to her by tbe findings and decree, wbicb is estimated to be sufficient to irrigate about forty acres of land; while tbe plaintiff, whose grantors were first in time, and should be first in law, is found to have and is decreed “the remainder of tbe waters of said creek at said point of diversion,” regardless as to whether there be sufficient or any water at all remaining with which to irrigate tbe said 120 acres of land, or any part thereof. In other words, by this decree tbe first appropriator shall be last, and the last appropriator shall be first. The court does not find, nor does the evidence disclose, the volume of tbe stream, except as the witnesses say that in low-water seasons it is only sufficient to irrigate one hundred acres. This award, too, as made, is sufficient to irrigate all defendant’s land notwithstanding that she increased her acreage from six' acres in 1891 to forty acres in 1895, while the grantors of plaintiff during tbe same time were increasing their acreage from 120 acres to 200 or 300 acres.
I think this judgment is wrong, and ought to be reversed, and tbe case remanded for new trial.