(concurring).
I concur with the Chief Justice in the result reached by him. I desire, however, to briefly state the precise grounds upon which. I rest my concurrence.
It appears from the record that the appellants interfered with the.dam constructed by respondents in a certain stream by means of which water was diverted hy them on to their lands for the purpose of irrigation. Such interference by appellants prevented the diversion of the water claimed by respondents. The respondents thereupon commenced this action to enjoin the appellants, and to prevent them from interfering with the dam and water rights claimed by respondents. The injunction was granted.' The appellants justified their interference with respondents’ dam and diversion of water principally upon two grounds: (1) That the water rights of the parties had been determined in a former action in which the amount of water to which appellants were entitled and their priority of right thereto had been adjudicated; (2) that respondents had interfered with appellants’ prior rights' and by means of such dam had' and were diverting water which by the terms of the decree in the former action, was adjudged to belong to them. It is elementary that where one person justifies his acts of physical interference with the property or property rights claimed by and in possession of another the burden to establish the right to interfere is cast upon the person who claims the right,to do so. The decree, the material parts of which are set forth in the opinion of the Chief Justice, simply establishes the priority of appellants’ rights to the quantity of water to which they are entitled as prior appropriators. So far as the so-called Geddes decree is concerned, therefore the respondents could not be held to have interfered with its provisions unless they in some way diverted water to which appellants were entitled thereunder. There is abundant evi-*447denee in tbe record to sustain the court’s findings that the respondents had not diverted any water to which appellants were entitled as prior appropriators, and the respondents’, dam did not interfere with appellants’ rights. From this it necessarily follows that the question argued by counsel with regard to the conclusiveness of the former decree1 is not material. If appellants’ rights, as established by the decree, were not invaded, it is of no consequence whether the decree is held conclusive or not. It further follows that if the respondents did not divert any water that belonged to the appellants, and appellants obtained all the water at their point of diversion to which they were entitled by virtue of their prior rights, or if they obtained all the water that would naturally and in any event flow down the stream- to the point where they di-. vert the water for use, then the respondents did not interfere with appellants’ water or water rights, and hence appellants had no right to interfere with respondents’ dam or means of diversion. Such interference was therefore unlawful, and the injunction preventing it is light.
Upon the question of the right of a junior appropriator to take water out of a stream at a point higher up the stream than the prior appropriator takes his water and which the junior appropriator diverts on to his land, and which water, it is claimed, by percolation is made available to the prior or lower appropriator. I express no opinion. In view of the finding of the court that the prior and lower appropriators’ rights- are not interfered with by the junior and upper appropriators, it is not necessary to pass upon the question. While the discussion of the Chief Justice upon the question to a certain extent is apposite and very interesting, it, -in my judgment, is not necessary to pass upon that either way in this case. The question respecting the right to divert water flowing in a stream for irrigation by an upper and a junior appropriator, under the claim that the water so diverted would not flow down to the point of diversion of the prior appropriator, or, that, if it would flow, nevertheless the prior and lower appropriator obtains the usé thereof through seepage and percolation, is one of compelling *448importance in this arid region, and should not be conclusively settled until it is presented as the controlling question in a case and in the light of a thorough discussion by counsel.
I am constrained to further state that in this class of cases, where it appears from the record that the trial court, at the request of the parties and in their presence, made a thorough personal inspection of the streams and sources of water supply, and the points and manner of diversion, this court should be very cautious in setting aside or interfering with the findings of the trial court. While this is a proper rule to apply in any case, in my judgment it applies with special force in so-called water oases. While the findings and decree in some respects are not as clear or as satisfactory as they might be, still long range interference is more likely to create mischief than it is to correct errors.
For these reasons, I feel constrained to concur in the af-firmance of the judgment.