(concurring specially).
Accepting only for the purposes of this suit the plaintiff’s own contention that the McCarty decree did not adjudicate water flowing during the non-irrigation season and hence for the purposes of this case that this is the first adjudication of such waters and that such adjudication being not part of the adjudication of a river system (which adjudication takes on the aspect of one in rem and may bind all parties joined or who should have appeared and adjudicated their rights) it follows that the statement that the decree herein is not binding on any but the parties to this suit, is correct. But since it is binding on the parties to this suit and their privies and assigns and is, at least as to non-irrigation season waters, erroneous because the right seemingly was not based on beneficial use of such non-irrigation season waters but on physical possession, I concur in the order herein insofar as it grants a new trial as to the issue of quantity of waters used beneficially during the non-irrigation season. I assume from the opening paragraph of the main opinion that the quantity found to *513have been beneficially used for culinary and stock purposes during the non-irrigation season will, and of necessity, must be found to be considerably less than one second foot. While I was not satisfied that the proof established a right to the quantity decreed during the irrigation season was founded on beneficial use, the rehearing was limited to the issues relating to the non-irrigation season. I, therefore, feel bound by that limitation. Under the order of reversal the lower court is directed to ascertain not only the quantity which can be used beneficially for domestic purposes during the non-irrigation season, but is given the authority and duty to ascertain the amount if necessary “under the present system to make the water conveniently available.” I am not sure that the present system of using water for domestic purposes during the non-irrigation season is not very wasteful. This may not be important so long as the unconsumed water eventually finds its way back to the same stream from which taken. But if we are to guard against the contingency of the such water “being taken and used in a place where it could not return to this stream”' and to' its likelihood of being treated as a vested right, I think the order of reversal should include the determination of means whereby the winter domestic uses could be satisfied by non-wasteful procedures rather than confining the issues for determination to the present system of using waters. I would specify in the order that the quantity needed under a system of usage which would make available the required waters for domestic purposes during the non-irrigation season with the least waste possible considering the practical exigencies of the situation.
HENRIOD, J., did not participate.