concurring.
4, 5 The contention made by counsel for respondent that a majority of this court did not concur in “directing a judgment or decree absolute for appellants” is so clear*375ly and fully answered by Mr. Justice FRICK in the foregoing supplemental opinion that nothing more need be said on that question.
It is alleged in the motion “to amend and correct” the opinion heretofore filed in the cause that an “affirmative judgment” for defendants (appellants) upon their counterclaim would deprive respondent of its property without “due process of law.” Counsel have not pointed out in their printed brief filed in the ease in support of the motion wherein and in what respect an affirmative judgment in favor of appellants would deprive respondent of its property without due process of law* Counsel, however, in their oral discussion of the motion to this court, clearly expressed their views and made plain their position regarding the foregoing propositions. They contended that the judgment directed to be entered by the court is, in some respects, not responsive to the findings and wholly outside of the issues presented by the pleadings, in that it decrees and awards to appellants all the water of Snake Creek during both the irrigation and nonirrigation seasons of each and every year. Appellants in their counterclaim alleged, among other things:
(1) “That for more than twenty-five years next preceding the commencement of this action these defendants- (appellants) and their grantors and predecessors in interest have been, and that these defendants are now the owners of, all the water and water rights for irrigation, domestic, and other beneficial purposes of the waters of what is known as Snake Creek, ’ ’ etc.
(3) “That the sources of said creek consist of rains, melting snows, springs, and seepages, and during the spring, fall, and summer months of each and every year ordinarily said springs and seepages constitute by far the greater portion of the waters of said creek and are the main reliance of the defendants for the irrigation of their lands and -for domestic and other beneficial purposes. ’ ’
(4) 4 4 That said springs and seepages have their sources in the bosom of the mountains upon which are situated the mines and mining claims of plaintiff described in its complaint and, when not interfered with, find their way to the surface of said *376mountain on tbe eastern slope thereof through, natural channels and fissures in the rock imbedded in said fountains, and the same reaches the surface thereof, and the said waters find their way into said creek and are natural tributaries and feeders thereof.”
(5) “That all of the waters of said creek as above described and the water rights pertaining thereto are, as above stated, owned by these defendants, and the same are necessary and not more than sufficient, when economically used, for the purposes hereinbefore stated. ’ ’
(6) “That the tunnel constructed and excavated by plaintiff (respondent here) * * * undermined, intercepted, cut off, and diverted the underground streams, springs, and seepages constituting the permanent sources of the waters-of said creek; * * * that by said undermining, intercepting, cutting off, and diverting the waters aforesaid as above described, the said springs and seepages and streams were prevented from reaching the surface of the' ground through the natural channels heretofore described, whereby and by means whereof said springs and streams ceased to flow to the natural outlets thereof and thence into said creek as they had done theretofore, but, on the contrary, were by the means aforesaid diverted away and caused to flow into and through said tunnel and out of the mouth thereof as hereinbefore stated.”
(7) “That said plaintiff, in violation of the rights of these defendants in and to the use of said water, now unlawfully claims a portion thereof, but said claim is adverse to the rights of these defendants as above set forth and is unconscionable, inequitable, and without foundation of right.”
Their prayer was:
“Wherefore defendants pray judgment by decree quieting their title to the waters issuing from plaintiff’s tunnel and for a perpetual injunction enjoining and restraining plaintiff, its servants, agents, employees, and successors in interest, from asserting any claim of ownership whatever in or to the water issuing from said tunnel. Defendants pray for general relief and for costs hereon.”
The trial court found:
“That the stockholders of the defendant corporation, Mid*377way Irrigation Company, and the other defendants, are the. owners of land in severalty, situated in and near Midway, Wasatch County, Utah, amounting to approximately 4,000 acres; that the said lands are unproductive without irrigation, but, with irrigation, are highly productive and valuable; that more than 25 years prior to the commencement of this action, and many- years prior to the commencement of the said Mountain Lake Tunnel, various people séttled upon said lands, and appropriated for beneficial uses in irrigating their said land, and for domestic and culinary purposes, all of the water flowing in Snake Creek, and their.successors have ever since used said water for the irrigation of said land and other-beneficial purposes. ’ ’
This finding was presumably drafted and presented to the trial court by counsel for defendants. Let that be as it may, the finding is not assigned as error, and hence is not before this court for review. It will thus be observed that the judgment directed to be entered by this court is responsive to, and ■clearly within, the issues. Moreover, respondent, neither in its complaint nor at the trial, claimed any interest in or to any of the waters of Snake Creek or its tributaries, except a portion of the water issuing from the tunnel which it claimed to have' developed by excavating and draining of its tunnel. The question of what use appellants make of the water during the winter and nonirrigation seasons of the year was not an issue and was not before the trial court for adjudication. I therefore join with Mr. Justice FRÍCK in denying the motion.