Argument for Appellant.

his lands, he is entitled to the reasonable use of the waters thereof for purposes of irrigation, for his stock and for domestic purposes; that he has not at any time when using the water of that portion of the stream below the upper and above the lower sink thereof, permitted the same or any portion thereof to run to waste, nor improvidently or wastefully used the waters of said stream, so as to materially or appreciably affect the rights of said plaintiff or those living upon any portion of said stream below him; that the only water at any time appropriated by said plaintiff or his grantors were the waters of certain springs having their rise upon the land formerly owned by Jacob Slaght, and now claimed by plaintiff, and that said springs are situated below the lower sink of Currant Creek. Similar averments are contained in the answers filed by the other defendants. The facts are sufficiently stated in the opinion.

Robert M. Clarke, for Appellant.

I. It is not necessary that a stream should flow continuously to constitute it a natural watercourse, or to entitle the plaintiff to the rights of an appropriator or riparian owner in the waters. (Angell on Watercourses, 6th ed. Sec. 4; Shields v. Arndt, 3 Greene Ch. 246; Barret v. Salsbury Manufacturing Company, 43 N. H. 578; Luther v. Winnisimmet Co., 9 Cush. 174.)

II. There is no aspect in which this case can be viewed that will not entitle the plaintiff to a decree. Should the court adopt appropriation as the law to govern the case, and measure the rights of the parties and extent of appropriation by the size of their ditches, the plaintiff must in that instance recover, because his ditches were first, and were sufficiently large to carry all the water he required in 1873, and because the defendants deprived him of the water which his ditches would carry. If the court measure the rights of the parties by the actual use of the water, the plaintiff must in that case recover, because he cultivated more land, and consequently used more water, than all the defendants in 1869 and

Argument for Appellant.

1870, and nearly as much as all of them in 1871, when, according to the proofs, there was plenty of water for all. If the plaintiff is to be limited to the water actually used by him in 1869, if he is to be denied the privilege accorded to the defendants of increasing his cultivated land and use of water from year to year as his necessities required, still he must recover something in this suit, because it is indisputable that he and his grantors used more water on the land he now owns, in 1869, than was permitted to reach him in 1873. If the court should divide the water in proportion to the acres cultivated by each in 1869 or 1870, plaintiff would get more than one-half the stream; if in proportion to the acres cultivated in 1871, plaintiff would get nearly one-half. If in proportion to the acres cultivated by each in 1873, and nothing could be more unfair to plaintiff than this, still the plaintiff would get about one-third of all the water flowing in the stream. If the court should give plaintiff the water unappropriated by the defendants and actually used by plaintiff in 1871, he will then have sufficient to irrigate his land; or if plaintiff gets water enough to irrigate as much land as the defendants added to their cultivated land since 1871, he will have as much as he required in 1873. If appropriation is to be rejected and the law of riparian proprietorship is to prevail, then the plaintiff, being connected with the fee by his contract with the State, and his lands being situated on both sides of the stream, is entitled to have the water of Currant Creek flow to and through his land at such times and in such quantities as are necessary to satisfy all his beneficial uses and actual wants.

III. The plaintiff was entitled to a decree upon the facts found. Whatever these rights, whether great or small, he is entitled to have them determined in the suit and settled by the decree. This action is not at law to recover damages, but in equity to determine rights to the use of water and to enjoin threatened diversion. The answers deny appellant's right to any of the water of Currant Creek, and affirm the right to be in defendants. It is very plain that plaintiff

Argument for Respondents.

was entitled to some water; this at least he was entitled to havo decreed to him, and to have defendants enjoined from interfering with. But no rights at all are decreed to plaintiff; on the contrary, he is adjudged to pay the costs.

Hillhouse & Davenport, for Respondents.

I. The notice of the intention to move for a new trial is the basis upon which this whole proceeding stands. The appellant appeals from the order overruling the motion for new trial, and also from the judgment. On the appeal from the order, the statement and assignments of error constitute the statement on appeal; that is, so far only as this Court can review the action of the lower court in refusing to grant a new trial. In other words, the statement on motion for a new trial being only for the purpose of raising questions on that motion-questions upon the grounds stated in section 195, upon which new trials may be granted

-can only be considered as a statement, so far as it is necessary to enable this Court to pass upon the correctness of the rulings of the court below in passing upon that motion; that is, no question can be raised in this Court on such a statement, except such as relate to the grounds upon which a new trial may be granted. On the appeal from the judg ment there is no statement; no specific or any statement of the particular or any errors upon which the appellant will rely, as required in section 332 of the Practice Act; then we contend that there are no questions of any kind raised on this appeal, except such as are raised properly on motion for new trial. "A new trial is a re-examination of an issue of fact." For the purpose of procuring such re-examination, certain grounds are specified in our Practice Act, upon which new trials may be had. We maintain that the only question raised upon this appeal is, Is the evidence sufficient to sustain the findings? The other questions sought to be raised could only be brought up in this Court on statement on appeal, with specific statement of the grounds upon which appellant would rely; and appellant has failed to furnish such statement or specification on this appeal.

Argument for Respondents.

II. Upon the question, whether the evidence is sufficient to support the findings, we invoke the very general and wellunderstood rule that, if there is any evidence to support the findings, or any material one of them of the lower court, the appellate court will not interfere. If Currant Creek is not a living stream of water, or if the water thereof would sink before reaching plaintiff's ranch; or, if plaintiff, at all times, had as much water as he first appropriated, and beneficially used, or as much as he needed; or if the spring on plaintiff's ranch supplied him with all he had ever appropriated or beneficially used or needed; or if plaintiff permitted water to pass him when his crops needed it, then the judgment and order appealed from must be affirmed. If either one of these findings are supported at all by evidence, the court below could not do otherwise than it did. III. The size of Barnes's ditches is not the criterion to determine whether or not plaintiff had at all times as much water as he had first appropriated and beneficially used. The turning of water is not sufficient; the user must accompany that before any right accrued. How much water did Barnes first appropriate and beneficially use? The findings are silent on this; and no motion having been made in the court below to have the findings on that point corrected, there is no way now to review that question. Where an action is tried by the court, the law points out the manner in which defective findings will be reviewed; and counsel have not followed that course.

IV. It is admitted that Barnes permitted the water to run past him. A court of equity will not compel the defendants to allow the water to flow down to Barnes if he may let it go on to whom he pleases, or may make use of it or not as suits his convenience or caprice. The whole doctrine of prior appropriation and beneficial uses is, that there must be some useful purpose for which a party uses the water before any right can accrue. Courts do not require water to run to one's ranch simply because he claims it, or that he may be generous and pass it on to some one below, who, so far as we know, may have had no right

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whatever. If Barnes "contributed to his own damage," then, of course, these defendants cannot be mulcted in damages or costs. He cannot come into a court of equity and say, you have done me irreparable injury, and threaten to continue it, when from this very evidence he shows that he did use what water was carried to him through ditches around the sink.

V. In all cases where the title to land passed from the government prior to the act of Congress of 1866, the common law doctrine, as decided in Van Sickle v. Haines, prevails. In cases where the title to the land remains in the government, or has passed from it since that act, the rule of "prior appropriation with beneficial uses." The act of Congress recognizes the law as settled by the decisions of local courts, etc. Our Supreme Court, in various cases prior to that act, and since, has followed the rule of decision of the California courts-that of prior appropriation and beneficial uses.

VI. Courts of equity do not permit parties to claim its aid where no damage has been done, and none threatened. We therefore claim that no decree, under any circumstances, could, on the evidence, have been entered for plaintiff; at any rate, not since the court had made its findings in favor of defendants on the evidence.

VII. The appellant did not prove himself the owner or in possession of the land, except as to fifteen acres—the amount inclosed by a fence. We submit that in order to maintain an action for the diversion of water from land, a party must have such title or possession of the land as would enable him to maintain an action of ejectment if ousted, or trespass against one entering thereon. No contract with the State can give a title that will maintain either of those actions; and hence, will not maintain this one. No possession of the land outside of the fifteen acres is proven, except that part of it had been cultivated.

In California, contracts of purchase with the State have been held admissible in evidence; but upon examination of those cases it will be found that they were made admis