I concur with the result reached in Mr. Justice LARSON'S opinion on the following grounds: All of the waters in question as long as they remained in the canal of the Logan Northern Irrigation Company were originally its property. That company had the right to make such beneficial use thereof as it saw fit. This was true both as to the waters which flowed through the canal without being diverted and used and the waters which were used and later returned to the canal by surface flow and seepage. Unless plaintiff has acquired the right to use these waters they are still the property of the Logan Northern Irrigation Company and it may in good faith put them to any beneficial use it sees fit *Page 482 even though in so doing it will interfere with plaintiff's use thereof.
Plaintiff claims to have acquired such right by appropriation and adverse use. It has not acquired any such right by either of those methods since 1922 because its use thereof since that time has only been a scrambling one, and it could not acquire such right by appropriation since that time because it has not filed an application to do so in the office of the state engineer as required by statute. Sec. 34, Chap. 100, Session Laws of 1903, which as amended is now 100-3-1, U.C.A. 1943.
Did plaintiff prior to 1903 acquire by appropriation the right to the use of that part of the waters in question which were not diverted from the Logan Northern Irrigation Company's Canal or used before plaintiff put them to a beneficial use? This question has already been litigated between plaintiff and the Logan Northern Irrigation Company and therefore cannot again be gone into now. In 1922, in the case of Utah Power and Light Company v. Richmond Irrigation Company, to which action both plaintiff and the Logan Northern Irrigation Company were parties, a general adjudicaton of the rights to the use of the waters of Logan River was made. In that action plaintiff was awarded no right to the use of waters diverted from the Logan River through the Logan Northern Canal and it is therefore barred from asserting such right now. I can see no good reason why plaintiff could not make a valid appropriation of waters which were being diverted into Logan Northern Canal but not used by that company's stockholders, if plaintiff put the same to a beneficial use. However, for the reasons above stated it is not necessary to decide this question now.
As to the waters which have once been used by the stockholders of the Logan Northern Irrigation Company and again returned into its canal, plaintiff can acquire no right to the use thereof as against the original appropriator either by adverse user or by appropriation. It is well established in this state and in other western states, in the absence of *Page 483 a statute to the contrary, that the original appropriator may change its manner of use, or use the water over and over again, as long as it does so in good faith, and such water does not escape from its property and control. This is true, even though in the past such water has been allowed to flow onto the property of another who has there put it to a beneficial use, and such changed use interferes therewith. This water still being in the possession and control of the Logan Northern Irrigation Company, plaintiff could acquire no right to the use thereof as against the company.
The defendants and interveners are stockholders in the Logan Northern Irrigation Company but plaintiff is not. The stockholders of a mutual irrigation company are tenants in common to the right to the use of its waters. Hough v. Porter,51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728. As between a tenant in common of property and a complete stranger to the ownership thereof the tenant in common has a better right to the possession and use thereof. To this effect are the cases cited by Mr. Justice Larson. Thus as between the plaintiff and defendants and interveners, the latter have the better right to the use of these waters.
McDONOUGH, J., concurs in the opinion of Mr. Chief Justice WOLFE. *Page 484