On Motion for Rehearing. It is contended in the motion for rehearing that we erred in holding that the appellee's only right as a riparian owner was to have sufficient water come down to his land to irrigate same, because the court below found that such waters are heavily charged with mineral matter, rendering such water unfit for irrigation when the water in the river is reduced in flow. We did not hold exactly what appellee states. Our holding was that the riparian owner's right was only to use sufficient water to irrigate his land and for stock-raising and domestic purposes. We believe it advisable to state that, in determining the questions arising in this case, we have tried to keep in mind every contingency as affecting all the riparian owners and all the statutory appropriators on a stream, to the end that we might reach the correct result in reason.
And we arrived at the conclusion stated in the original opinion in this way: It is certain that under our laws the waters are the property of the public, subject to the easements of riparian owners. The riparian easement is the right to use an amount of water reasonably sufficient for domestic and stock-raising purposes and for irrigating the riparian lands. A statutory appropriation, under our decisions, is effective as against the waters so the property of the public, subject to the easements of the riparian owners which have the prior right.
If the water is sufficient only for riparian owners using it, it must be equitably divided between them. As between the riparian owner and the statutory appropriator, the riparian owner must first have water reasonably sufficient, as indicated; but as against the excess the statutory appropriation is effective. To hold that riparian owners have the right to have all the water flow past their land as against statutory appropriations would be to destroy the appropriation statute in its entirety, for there are riparian owners on every stream, and if each had the right as against the appropriator to have all the water flow past his land, there could never be an effective appropriation anywhere. We refused to decide in the original opinion whether an appropriation is good against the water until such time as the riparian owner shall make use of it; but, as here illustrated, we very strongly incline to the opinion that this will be found to be the law. Every stream is bordered by riparian lands, even the Mississippi river, the largest stream we have. If every riparian owner had the right to have all the water, as against appropriators, flow past his land, no valid appropriation could ever be made. Again, if as we have held the riparian owner's only right is to use sufficient water for his land's purposes, still it would follow, if his right was good against appropriations, before he made use of the water, that on small streams the appropriation statute would be nullified. On the other hand, if the law is that the riparian owner can only use sufficient for his land's purposes, ind if the law is that he only has the preferential right when he uses it or when in *Page 711 good faith he is about to use it, then there has been preserved the statutory appropriation, without, it will be noted, injuring the riparian owner; for if the water is sufficient only for the riparian owners using it, there can be no valid appropriation. If there is an excess over what the riparian owners using it need, then as to the excess the appropriation is valid. If there is a stream where none of the riparian owners care to use the water, and which flows only a small quantity, it may nevertheless be used by the appropriator, subject always to the prior right of the riparian owner to the extent of his needs.
We think, however, that the point made by appellee is well taken. The riparian owner in this case is entitled to sufficient water for his land's purposes. This necessarily means sufficient usable water, and it would be proper for a decree, if he show himself entitled to one, to award sufficient water so as to avoid the mineral impregnation; but, having ascertained the amount, as may be done, the judgment should certainly and definitely fix the same so as to make it intelligible and capable of enforcement.
What we have said does not change, however, the result of the case. The motion therefore is overruled.