sitting in place of
MR. JUSTICE DOYLE, dissenting.*366I dissent. As can be seen from the lengthy history of this case in the majority opinion there has been an argument between the majority and the minority of this court about facts and the majority now proposes to perpetuate this argument about facts on into some distant date in the future.
This court has a rule to settle factual disputes and it .has been expressed some 54 times where a judge has decided the facts, see Digest, Appeal and Error, 931. The most recent expression of the rule by all the members of this court is contained in Marshall v. Minlschmidt, 148 Mont. 263, 419 P.2d 486, a trust case wherein it quotes from Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162.
“In an equity case the findings of the trial court will not be disturbed on appeal unless the evidence CLEARLY PREPONDERATES against them, and when the evidence, fully considered, furnishes a substantial basis for the findings they will be allowed to stand. [Citing cases.] Moreover, this court cannot lose sight of the fact that the trial judge had the decided advantage of seeing the witnesses and hearing their testimony and observing their conduct and demeanor upon the stand.”
In these cases, two very competent district judges, McHugh and Duncan, had the opportunity to go up and look at the pot holes on Dempsey Creek to help in their determination of the facts and hear the witnesses. And now the court proposes again to ignore their findings of fact by stating that the “Burden of proof that is necessary to show the use of natural subterranean water courses and conduits in developing reservoir systems, must be a substantial one.”
If I understand this correctly the rule as stated in Marshall v. Minlschmidt, supra, is okay for trust cases but in water cases a different rule applies; in fact, the opposite rule applies. Such vacillation would allow this court to establish yet another rule in contract cases, and a third rule in tort cases ad infinitum. I think the same rule should apply in all cases and especially in this one where the evidence was so strong in my opinion, that *367the district judge could not do otherwise than he did. This is the second district judge that has made the same findings on this same water dispute and without a doubt the third district judge would do no differently. As was said in In re Cocanougher’s Estate, 145 Mont. 60, 68, 399 P. 420, 425: “Further, there must, in all cases, be an end to litigation.”
The majority now suggests that there should be some recourse to modern hydrological techniques to establish the facts in this ease. When we receive the great diversity of scientific opinion which two doctors express in court, both looking at the same x-ray, and giving different opinions on it, I do not think that scientific testimony will settle this matter any more than the excellent evidence we have before us. Undisputed evidence shows that when these pot holes are not filled up the springs on the creek dry up and the measurement in the creek above and below these springs is almost identical. That, to me, is stronger evidence that any hydrologist or anyone else could produce. (Transcript 244 et. seq.; 305 et seq.; 369 et seq.) Justice Angst-man in his dissent in Woodward v. Perkins, 119 Mont. 11, 32, 171 P.2d 997, 1007, back in 1946 wrote:
“* * * We were advised by counsel for defendants at the oral argument and in the brief that since the decision on the former appeal water has not been diverted by defendant Perkins into the 'pot holes’ and that, as a consequence, there has been a cessation of the flow into the drain ditches, which demonstrates rather convincingly that the water intercepted in the drain ditches came from the ‘pot holes’ and he contends that defendants should be permitted to so show. This demonstrative proof was not in existence at the time of the trial. Such evidence would he particularly ponvincing if upon filling the ‘pot holes’ again there would he a revival of the flow into the drain ditches, no other cause therefore intervening.” Emphasis supplied.
Judge Angstman’s convincing evidence has now been shown at this trial. No water whatever was put to any of the pot holes in the Fall of 1948 or the Winter or the Spring of 1949, *368(T. 397) with the idea being a check would be made to see if the water emerging from the base of the glacial plateau would completely dry up. With the concurrence of all parties, (T. 310, 311) the measuring boxes were installed so that measurements would be made above and below the area of the. drains to prove whether the drying up of the pot holes would result in a drying up of the drains. (T. 409) This, of course, is exactly what happened. The measurements made showed on July 3, 1949, a gain of only two inches. (T. 308) On July 20, 1949, a gain of only three inches; and later in July, a loss of nine inches. (T. 310)
To me this proves overwhelmingly, as Justice Angstman said it would to him, that failure to fill the pot holes resulted in the drying up .of the area of the drains; and further, satisfied everybody on the creek because they then entered into an agreement set forth in the transcript, page 161, and everybody was happy for many years. The majority suggests that this agreement was entered into under compulsion because of prior decisions in this case, but that is conjectural and not based upon anything in the record.
I think it was entered into freely because the other water users were convinced Perkins was getting none of their decreed water. This alone should settle the case from an evidentiary standpoint. The court criticizes the evidence because the “respondent is unable to state the capacity of his pot hole system.” If that has to be done of course his burden is insurmountable. He does state he runs water into the pot holes all Winter and all Spring until the water commissioner takes over.
The court further states that even if it were possible to establish appropriative right to such seepage waters, the amount of water to which respondent would be entitled thereunder could not be determined on any rational basis through the use of the measuring boxes. This I cannot see. These measuring boxes are the same that are used throughout the State of Montana to measure all decreed creeks and I do not know why anyone would *369determine that snch a basis for measuring water is irrational. At least no reason is given therefor.
That these reservoirs or pot holes leak into Dempsey Creek, not even the majority opinion denies. The defendants’ expert witness even agrees with this, only in his opinion it does not last as long as plaintiff contends. This would indicate to me that rather than a failure of substantial proof there is a substantial agreement among the witnesses.
The hydrologist’s testimony is interesting to quote. (T. 507) He said in this case, when it was explained to him, that prior to putting any water in the pot holes, in 1908, it was dry and without vegetation near the creek below this plateau and that after water was put in the pot holes vegetation grew and springs began to show. His explanation of it is at page 508.
“A. I still think it was probably a geological coincidence that caused that. Certainly the amount of water he put into those pot holes came out the bottom, I mean, I have been saying that all along, but to continue, the amount of water to come out in any excess of what he puts in has to come from some place else in my opinion.
“Q. So it was just a coincidence that after Mr. Perkins put water in those pot holes in 1908 that it got wet and swampy and springs and so forth along Dempsey Creek, that was a coincidence? A. That could be a possible explanation of it. I really don’t know. I’m just saying that it’s a coincidence. We have earth changes rather rapidly. The Madison earthquake in 1959 caused a lot of springs to dry up and a lot of new ones to form and something like that could have happened. I’m not saying that it did.”
Clifford Perkins testified on page 250, speaking of the numbered pot holes:
“A. Oh, that No. 2 will hold water for six weeks to two months.
“Q. What about No. 3 and 4? A. They won’t hold very long.
*370“Q. And what about No. 1? A. It will hold water the year round.”
This evidence is undisputed in the record.
The majority further says that respondent failed to prove that he retained any actual control of the water after it is placed in the pot holes or provided a sound scientific basis for determining how much seepage he might be entitled to. It seems to me that if the expert agrees that the water comes out below in springs and gets into Dempsey Creek that that is pretty good control since when he shuts the water off the water in the springs ceases to flow and when he fills the pot holes the water flows again. I don’t know what greater control the court expects in a situation like this. As far as providing a sound scientific basis for determining how much of the seepage he might be entitled to it seems to me that since Perkins gets only 80 percent of the increased flow above and below these springs that such a percentage is giving all the benefit of the doubt to the decreed water users. The majority criticized because respondent Perkins made infrequent and fragmentary observations of the upper and lower boxes in 1950 and following years. I admit that his evidence may not be convincing, but I remind the majority that Water Commissioner Kelley testified as to the results of the experiment made in 1950 and on June 1 through 13 he gave Perkins 89 inches of water which is 80 percent of the gain between the upper and lower measuring boxes. July 15 Perkins was given 172 miner’s inches of the gain, July 19 Perkins was given 168 miner’s inches, through the rest of July Perkins was given about 160 miner’s inches. August 1 through 14 Perkins was given 146 miner’s inches, down to 95 miner’s inches dropping a little each day. All of this was testimony by an uninterested person and the 20 percent margin allowed for other seepage, which may well occur in the rainy weather, was in my opinion generous and amply protects the decreed water users and even benefits them, thereby following the “announced policy of this State to promote the irrigation *371of land wherever possible.” This quotation is from the majority opinion.
The findings of the lower court should be upheld.