The facts sufficiently appear in the opinion. This is an action for damages for the diversion of water. Respondents are the owners of lands upon the Carson river, and have the prior right to divert so much of the waters thereof flowing through a described ditch situated upon defendants' lands, higher up the river, as is necessary to irrigate 142 acres of land. A jury assessed the damages at $775.
1. The first assignment of error is the admission in evidence of the judgment roll in a former action between the *Page 386 same parties. The purpose of this evidence, as shown by an instruction of the court, was to establish respondents' right to maintain a certain dam and ditch over appellants' lands. Afterwards it was admitted that respondents were the owners of the dam and ditch, with the prior right to the use of so much of the water as was necessary to irrigate the quantity of land as the proof should establish. Appellants having admitted the facts which this evidence tended to prove, its admission was not prejudicial.
2. The findings of fact in the former case were also introduced in evidence, but were withdrawn by respondents, and the court instructed the jury not to consider them. A similar motion and instruction were made and given touching evidence of damages accruing since the commencement of the suit.
3. Respondents' instruction No. 5, as modified, reads as follows: "If you believe from the evidence that it was necessary that plaintiffs should have sufficient of the waters of the Carson river to fill their ditch to its full capacity during the irrigating season of 1898 and 1899, or either of said years, in order to have irrigated their crops properly on the lands irrigated for crops for five years prior to the commencement of this action, then your verdict should find that the plaintiffs are entitled to sufficient of the waters of Carson river to fill their ditch to its capacity during the irrigating season; and, in determining the matter, it is your duty to compare your knowledge and experience with the evidence in the case, and determine what the fact is." It was shown that the amount of land under cultivation in the years 1898 and 1899 was 142 acres. The carrying capacity of the ditch was about 1,200 miners' inches. Some of plaintiffs' witnesses testified that a full ditch of water was necessary to irrigate the growing crops. This liberal allowance may not be necessary in seasons of more humidity, or in years when the cultivated area is less.
The law is that an appropriator is only entitled to so much water, economically used, within his appropriation, as is necessary to irrigate his land. The necessary amount of water varies with the seasons. The decree, as entered, in effect allows respondents all the water their ditch will carry *Page 387 during the irrigating season of each year, irrespective of its necessity, and enjoins appellants' interference therewith. In this respect the decree is erroneous, and must be modified by eliminating therefrom all directions touching any fixed quantity or volume of water to be taken in plaintiffs' ditch. The error in the instruction does not affect the verdict returned by the jury, and will not necessitate a reversal of the case.
The cause is remanded to the district court, with directions to modify and amend its decree in compliance with these views, and when so amended the judgment and decree will be affirmed. Each party to pay his own costs in this court.
Per Curiam: Rehearing denied.