concurring.
After much hesitation I concur in the reversal of the judgment. I, however, do not concur for the reasons nor upon the grounds stated by Mr. Justice MeCARTY. My concurrence is based upon the sole ground that under the pleadings, as well as under the facts and circumstances, the burden of proof rested upon the respondents to show that the water they claimed, or at least a portion thereof, was what in law constitutes developed water.
By developed water I mean water that would not have run to waste or would have remained stationary or concealed beneath the surface of the ground, but that it was' water which was brought to the surface and made available for use by the respondents. 2 Kinney on Irrigation, 2186, 2187. While, under the evidence and circumstances or this case, I am forced to believe that, in running the tunnel into the mountain for a distance of over 5,000 feet, the defendants increased the quantity of water at least temporarily, yet I am unable to say, from all the evidence, whether such increase is permanent, or even to ' say definitely what the amount of the increase was. The burden was on respondents to show and make evident these things, and I am of the opinion that they have not done so. It is a matter of common knowledge that in this mountainous region the water which percolates into and through the porous soil of the mountains, especially in the higher altitudes, at some time and in some manner finds its way into the mountain streams. Merely to drive a tunnel into a mountain therefore, into which and from *368which a considerable quantity of water flows, is not even persuasive evidence that the water thus flowing from such a tunnel is what is termed developed water, within the perview of the law. In order to authorize a finding that the water encountered in such a tunnel is actually developed'water, the proof, in my judgment, should be reasonably strong and clear. The proof in this case is not of that character. The only conslusion I am able to arrive at, therefore, is that the evidence does not sustain the finding that the respondents developed all the water, except the three second feet which they allowed to appellants, but in my judgment the amount that the respondents have developed, as well as whether it is permanent or not, is left in serious doubt. Under such circumstances, respondents are not entitled to maintain the judgment. Personally I should have preferred to have remanded the cause to the district court, with directions to set aside its present findings and to hear further evidence, and then make new findings upon the following question, namely: How much have the respondents added to the permanent flow of the stream from which appellants derive their supply up to the time of the hearing? If the court finds that they have added any, then that amount would constitute developed water to which respondents are as much entitled as are appellants to the water they have appropriated from the stream into which the tunnel in question now drains. I have felt constrained, however, to yield my judgment to that of my Associate, Mr. Justice McCARTY, and therefore concur in the reversal of the judgment only for the reasons and upon the grounds stated, I do this with less hesitancy, because in doing so I am less likely to inflict injury upon any one man than if the judgment were affirmed. It is possible that the water coming o.ut of the tunnel may temporarily have inci’eased the flow of the stream, but it is equally possible, even quite probable, that there is no permanent increase of water, and hence, if the water were given to respondents, it would result in taking what belongs to the appellants. It is this peculiar feature of the case that has caused me to hesitate in this matter, and finally to concur.