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that the same would have sunk and disappeared before forming a connection with the waters of the springs on the Slaght ranch, and thereby have proved fruitless and of no avail to said plaintiff."

6. "That the plaintiff, at the time he needed the use of the water upon his crops of grain and vegetables, by his own acts permitted the water which had been turned down to him by defendants, from above, through their ditches, to flow past his premises for the use and benefit of other parties below him, thereby contributing to his damage."

7. "That by no act or acts of these defendants, or either of them, has this plaintiff sustained damage in any amount whatever."

The court finds as matters of law: "That the plaintiff is not entitled to recover, and that he take nothing by reason of his suit; that defendants are entitled to recover of said plaintiff their costs in this behalf expended; that no injunction, either temporary or perpetual, issue against said defendants, or either of them, their agents or employes."

The duty devolved upon courts, of determining the truth where the testimony is conflicting, is always unpleasant, and often difficult. It belongs almost exclusively to our nisi prius courts, and should always be exercised and determined by an impartial judgment. It is, indeed, almost impossible for an appellate court to ever satisfy itself upon such questions, so, much really depends upon the manner, bearing, character of witnesses, and the peculiar circumstances of each case, which the transcript fails to preserve, and which always give value and weight to testimony. Hence it is that appellate courts are seldom, if ever, inclined to disturb the findings of the court below, where there is a substantial conflict in the evidence, if sufficient appears in the record to support the findings. Where there is a conflict, the question is often presented as to which of the witnesses, apparently of equal credit, had the best opportunity to ascertain, or which was most likely, on account of his interest, position, circumstances or surroundings, to remember the facts. Again, it does not necessarily follow that because there is a conflict in the testimony, that one or the other of the witnesses have testified-falsely, and that the court must take the whole statement of one and

reject the entire testimony of the other. It is the duty of all courts first to ascertain whether or not the testimony can le harmonized upon any given state of facts, before any part thereof is rejected. With these rules in view we have examined the testimony to ascertain whether the "findings" are supported by the evidence.

It appears from the testimony that Currant creek is partly supplied, at certain seasons of the year, from springs having their rise and flow along its banks and bed, but mostly from the melting snow on the mountains. There is no regularity as to the quantity of water, for, to quote the language of several of the witnesses, "no two seasons are alike," the amount of water flowing being dependent upon the character of the weather during the preceding winter. After a cold winter, when deep snows have fallen, the water flows in greater quantity and for a longer time than after an open winter with but little snow; hence the amount of water varies in the summer season, according to statements made by different witnesses, from nothing to five thousand inches. There is a conflict of evidence as to the real character of this stream; the conflict, however, is principally confined to the question, whether the water therein "continuously flows." The fact that should have been found by the court below was, whether or not Currant creek was a natural water course and surface stream. To ascertain that fact, it was not necessary to determine whether the water was continuously flowing.

"A water course," says Angell, "consists of bed, banks and water; yet the water need not flow continually, and there are many water courses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water which, at certain seasons, is dried up, and those occasional bursts of water which, in times of freshets or melting of ice and snow, descend from the hills and inundate the country." (Angell on Water Courses, Sec. 4.) This distinction was entirely ignored by the court below. We are of opinion that the testimony clearly shows that Currant creek belongs to the first class referred to by Angell; that it is a "flowing stream of water," a water course as distinguished from water flowing through hollows, gulches or ravines only in times of rain or melting snow.

The finding" that the same is supplied at certain seasons of the year from the snows on the mountains above the valley, and from springs having their rise and flow along the banks and bed of the same " (being sustained by the evidence), gives to this creek the character of a natural water course, in so far as finding one is involved. It is well settled that in order "to maintain the right to a water course or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or sides. It need not be shown to flow continually, and it may at times

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be dry, but it must have a well-defined and substantial existence." (Angell, supra.)

Findings two and five will be considered together. They are, in our judgment, without substantial support in the testimony. It is true that at certain places on the creek, at certain seasons of the year, the waters from the springs flowing in said stream "did sink and disappear beneath the surface of the earth," but in nearly every instance it is shown either that it occurred when defendants were diverting all, or nearly all, of the waters from the creek, or that the water after sinking beneath the surface appeared within a very short distance in the bed of the stream. It appears from the testimony that at a certain point on the creek where it flows through the land of defendant Sabron, the water flowing in the natural channel from above loses its force, the bed of the stream rises causing the water to spread out and run in different channels; as the soil is sandy a portion of the water is absorbed and the quantity flowing in the creek below is considerably reduced. In support of these findings defendants introduced considerable testimony, a portion of which we quote. Lemmon testi-fies that about three miles above the narrows there are some springs that afford about twenty inches of water, which run a short distance and sink; above them it is dry, during dry seasons, for one mile above Kain's house. Holloway testifies that "in the forepart of August, 1872, about two hundred yards above Travis' house the water sunk; a short distance below Travis' house, about fifty yards, the water appeared again in the bed of the stream." Boyd testifies that in 1870, upon Sabron's ranch, after water was turned into the creek it did not get to plaintiff's ranch until the next year;

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but he says that in June and July, 1870, after irrigating land on Sabron's ranch for two days, the water was turned off and that it found its way into the channel and run down to Slaght's ranch. English testifies that "if the water should flow unobstructed from Whitehall's place to the Slaght place, a great deal of it would sink all the way down." He also testifies that he knew a place on Sabron's land, between those two places, where the water sinks, for he had "seen it dry for several months in succession"; yet he adds that "in irrigating season, the water, if turned into the natural channel and not obstructed, might run over the bar at Sabron's place. I have seen it run over the bar plenty of times. I saw water running over the bar last year (1873) in the summer months. * * * I saw water running on the bar in May and June, 1873." Dennet testifies that in June, 1869, at the point where the water spread, out, it did not reach Sabron's ranch at the lower end. We have quoted the most favorable testimony for defendants, and it, in our judgment, fails to sustain the findings. When all the testimony bearing upon these findings has been sifted from the rubbish found in the record and closely scrutinized, we think the truth is that when the defendants were diverting all the water in the summer season the bed and bar became dry, and if either one of the defendants turned the water down without the co-operation of the others, but a small proportion, if any, of the water thus turned down into the natural channel would ever reach the premises of plaintiff; but if the water was all turned down and allowed to flow in the natural channel without interruption, it would run over the bar and reach plaintiff's land, although its quantity might be reduced; the amount lost being to some extent dependent on the amount flowing in the creek-the greater the amount the less the proportion reduced.

Plaintiff's appropriation, when made, applied to the then condition of the stream. At that time and for several years afterward sufficient water flowed down to plaintiff's premises to irrigate his land, independent of the water flowing from the Slaght springs. This was the condition of the creek until defendants commenced using all, or nearly all, the waters from above to irrigate their lands. The fact that their use of the water has caused the channel to dry up, is

no excuse for depriving plaintiff of the amount of water to which he is entitled by virtue of his prior appropriation. All the defendants procure water from the surface, either from the creek or from springs, and no facts are presented which call in question the legal rights of any of the parties to percolating waters beneath the surface of the earth.

The first clause of finding three is a conclusion dependent upon facts not found by the court. How much water was plaintiff entitled to as the first appropriator? Upon this important question the finding is silent; yet the court says "that plaintiff at all times has had the uninterrupted enjoyment of all the water first appropriated by him," and evidently bases this part of the finding upon the latter clause, "that the amount of water first appropriated and beneficially used by him, is continually supplied to him from the springs rising upon the lands of plaintiff, formerly known as the Slaght ranch, and below the premises of either of these defendants." How much water is supplied to plaintiff from these springs? No answer to this question can be found by examining the findings. It is questionable whether such a conclusion based upon such an uncertainty rises to the dignity of a finding of fact worthy of review. From the phraseology of the last clause, it may be that the court was of the opinion that plaintiff should be limited in his rights to the amount of water actually used by him in the first year of his appropriation. The words "first appropriated and beneficially used" are susceptible of that construction. The plaintiff's rights to the water are not, however, dependent upon the amount beneficially used by him in the first year of his appropriation, as will more fully appear in our review of other findings; hence this view of the case can not be sustained.

The position contended for by respondents' counsel, that this finding could be sustained upon the ground that plaintiff had failed to produce any title or prove actual possession to more than fifteen acres of land, that being the amount inclosed by a substantial fence, and that he was only entitled to sufficient water to irrigate that number of acres, is equally untenable. From an examination of the record it is manifest that no such question was presented or considered in the lower court, and it is doubtful whether from the facts of

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