The sole point presented on the petition for a rehearing, and presented for the first time, is that 160 acres of the 240 acres N.H. Finmand lands is riparian to the north branch of Eagle Creek and that, therefore, the taking of water from a point on the south fork of the creek below the forks of the creek, by means of a diverting ditch for the irrigation of said 160 acres, has ripened into a prescriptive right to the use of such water. It may be conceded that the 160 acres in question are shown by the record before us to be nonriparian to the south fork of Eagle Creek; and it may likewise be conceded that the evidence adduced upon the whole case would support a finding that the said 160 acres are entitled to a prescriptive right to the use, through the medium of the diverting ditch in question, of such an amount of water, from the south fork of Eagle Creek as was actually and reasonably used and applied to a beneficial purpose. *Page 137
[14] Evidently the allegation of the defendants' cross-complaint and the finding of the trial court that all of the N.H. Finmand lands, the 160 acres mentioned and 80 acres more, were riparian to Eagle Creek was made upon the theory that inasmuch as the 160 acres were riparian to the north fork and the 80 acres were riparian to the south fork, the whole tract was riparian to the main stream. As pointed out in the original opinion, the trial court ignored the finding that all of the N.H. Finmand lands were riparian to Eagle Creek and did not attempt to base any judgment thereon. Therefore, for the purpose of a new trial, it will suffice to say at this time, upon that phase of the case which involves the issue of the prescriptive right in question raised by the cross-complaint of the defendants, that so far as the diversion of water above the fork of Eagle Creek is concerned all of the lands upon both forks should be deemed riparian and consequently the use of water diverted from above the place where the stream forks is an exercise of riparian ownership. [15] If, however, water is diverted from one fork for use upon lands which are riparian only to the other fork, such diversion is hostile to the riparian rights of lands bordering upon the fork from which the water is taken. That is to say, if the N.H. Finmand 160 acres diverted and used water from the south fork of the creek and said 160 acres are riparian only to the north fork, then such diversion and use is hostile to the riparian owners on the south fork and an invasion of their rights and may ripen into a prescriptive right. If, on the other hand, water which would normally flow into the north fork was by diverting dams caused to flow into the south fork and then taken therefrom for the purpose of irrigating the N.H. Finmand 160 acres which were riparian only to the north fork, such use to the extent of the amount of water so taken would be an exercise of the riparian right to the north fork of the creek of the N.H. Finmand 160-acre tract.
It should be noted, however, that the finding of the trial court in response to the issue of the prescriptive right in question grants to the N.H. Finmand lands in their entirety — the upper 160 acres and the lower 80 acres — 280 inches of water of Eagle Creek measured under a four-inch pressure. The record shows that only the 160 acres would be entitled to a prescriptive right to the water of the south *Page 138 fork of Eagle Creek and, therefore, the finding of the trial court that the entire 240 acres of the N.H. Finmand lands had acquired a prescriptive right to the water of the south fork of Eagle Creek is not sustained by the evidence. This is so because it appears from the evidence that 80 inches of the 280 inches of water awarded to the N.H. Finmand lands under a prescriptive right were taken from the south fork of Eagle Creek and delivered upon the 80-acre tract through the medium of a second diverting ditch at a point below the ditch which diverted the water of the south fork on to the 160 acres of land. The 80 acres of land are undeniably riparian to the south fork of the creek and whether the water used for the irrigation of those particular acres was taken from a point where the creek bordered thereon or from some near-by point, the taking would be that of a riparian owner and the rights of the respective parties to the water so taken are to be measured and ascertained by the rules covering and controlling the rights of riparian owners.
With reference to the question of whether or not the exercise by an upper riparian owner of his riparian right is to be deemed hostile to those below him, the question is one of fact to be tried and determined by the trial court. The exercise of the mere riparian right can never be hostile to the land below. Where, however, the use is under such circumstances as to be adverse and under a claim of right asserted against lower riparian owners, it may ripen into prescriptive title.
Rehearing denied.
Lennon, J., Shaw, C. J., Ward, J., Waste, J., Lawlor, J., Sloane, J., and Wilbur, J., concurred. *Page 139