I dissent. The defendant Perkins was entirely within his rights when he diverted the excess waters from Dempsey Creek into his pot holes. (Sec. 7093, Rev. Codes; Rock Creek Ditch FlumeCo. v. Miller, 93 Mont. 248, 259, 17 P.2d 1074, 89 A.L.R. 200.)
Again he was within his rights when he recaptured the water in his drain ditches. It was percolating water under his own land. (Rock Creek Ditch Flume Co. v. Miller, supra; Ryan v.Quinlan, 45 Mont. 521, 124 P. 512; Spaulding v. Stone,46 Mont. 483, 129 P. 327; Wills v. Morris, 100 Mont. 514, 536,50 P.2d 862.) And he recaptured it before it escaped from his lands. The water commissioner measured the volume from the drain ditches into Dempsey Creek and measured it out farther down the stream where it was taken out through ditches to defendant's lands, less not more than ten per cent being allowed for loss while flowing in the channel of the stream. In that he was again within the law and his rights. (Sec. 7096, Rev. Codes; State exrel. Mungas v. District Court, 102 Mont. 533, 539, 59 P.2d 71.) The only question in the whole proceeding about which there can be any doubt is as to whether or not the waters that escaped by seepage from the pot holes and were recaptured in defendant's drain ditches were the same waters that the defendant had impounded in such pot holes, and a clear preponderance of the evidence sustains the findings of the trial court that they were the same waters. Under the general rule, upheld by this court in a long line of decisions, the judgment of the lower court should be affirmed. (Wills v. Morris, supra, and cases cited.)