Mr. C. B. Nolan, for Appellants.

The question as to whether or not Kitto and Williams had acquired title by adverse user to the water claimed by them. was an issue of fact by the pleadings and under the proof, and the court should have made a finding thereon. (Estill v. Irvine, 10 Mont. 512, 26 Pac. 1005; Quinlan v. Calvert, 31 Mont. 115, 77 Pac. 428.) The failure to make findings on material issues is reversible error. (Christy v. Spring Valley W. W., 84 Cal. 541, 24 Pac. 307; McTarnahan v. Pike, 91 Cal. 540, 27 Pac. 784; Ball v. Kehl, 95 Cal. 606, 30 Pac. 780; Duane v. Neumann (Cal.), 2 Pac. 274; Hawes v. Green (Cal.), 3 Pac. 496; Ross v. Evans, 65 Cal. 439, 4 Pac. 443; Casey v. Jordan (Cal.), 9 Pac. 99; Conklin v. Stone (Cal.), 6 Pac. 378; Everett v. Jones, 32 Utah, 489, 91 Pac. 360; Levinston v. Ryan, 75 Cal. 293, 17 Pac. 239; Later v. Haywood, 14 Idaho, 45, 93 Pac. 374.) It was the duty of the court to supply omissions in the findings when its attention was called to such omissions. (Luse v. Isthmus T. R. Co., 6 Or. 125, 25 Am. Rep. 506; Simmons v. Richardson, 5 Hun, 177; Logan v. Hale, 42 Cal. 646; Ogburn v. Connor, 46 Cal. 353, 13 Am. Rep. 213; Hayes v. Wetherbee, 60 Cal. 399; Mitchell v. Jensen, 29 Utah, 346, 81 Pac. 165.) Where evidence is introduced on a material issue, the court should make the finding thereon, and until such finding is made judgment may not be properly rendered. (Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664.)

In view of the undisputed testimony that appellants' predecessors took all the water in the stream during its low state, and at a time when the water was needed by respondents, there is no element of adverse user that is not met by the proof. (See Hubbs v. Pioneer Water Co., 148 Cal. 407, 83 Pac. 253; Gutier rez v. Wege, 145 Cal. 730, 79 Pac. 449; Talbott v. Butte City Water Co., 29 Mont. 17-27, 73 Pac. 1111; Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059.) And in view of the testimony of the taking of the waters by appellants and their predecessors, the burden is on the respondents to show, if they so claim, that notwithstanding the taking, there was still sufficient for

their use. (Gardner v. Wright, 49 Or. 609, 91 Pac. 286; Gurnsey v. Antelope Creek Co., 6 Cal. App. 387, 92 Pac. 326.)

Mr. T. J. Walsh, Mr. W. T. Pigott, Messrs. Walsh & Newman, and Mr. Geo. F. Cowan, for Respondents.

It

The right to take water from a stream is an easement (Smith v. Denniff, 24 Mont. 20, 81 Am. St. Rep. 403, 60 Pac. 398, 50 L. R. A. 741); and a prescriptive right to an easement is acquired by adverse user of the thing, not by adverse possession of it. (Roe v. Howard Co., 75 Neb. 448, 106 N. W. 587, 5 L. R. A., n. s., 831; Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635.) Constructive possession will not justify a claim of prescriptive right to those things which can be possessed. must be actual. And a plea of prescription must aver that possession was "actual." (13 Ency. of Pl. & Pr. 286; Omaha etc. Trust Co. v. Parker, 33 Neb. 775, 29 Am. St. Rep. 506, 51 N. W. 139; 1 Am. & Eng. Ency. of Law, 822.) "Adverse possession to ripen into a prescriptive title must be actual, open, notorious, exclusive and continuous for the statutory period." (Wilson v. Braden, 56 W. Va. 372, 107 Am. St. Rep. 927, 49 S. E. 409; see, also, Evans v. Templeton, 69 Tex. 375, 5 Am. St. Rep. 71, 6 S. W. 843; Faull v. Cooke, 19 Or. 455, 20 Am. St. Rep. 836, 26 Pac. 662.) One claiming a prescriptive right to the use of water must make it good by "clear and unequivocal proof." (Union Mill & Min. Co. v. Ferris, 24 Fed. Cas. 599, Fed. Cas. No. 14,371, 2 Saw. 176; Evans v. Welch, 29 Colo. 355, 68 Pac. 776.)

To establish the right to the use of water by adverse user, if properly pleaded, the burden is upon the party asserting that right to establish by a preponderance of evidence (1) that the water was used for a full period of ten years; (2) that during that period it was applied to a beneficial use; (3) that such use was hostile, open, notorious and continuous; (4) that it was so used under a claim of right with the intention of establishing title thereto; (5) that such use was adverse to the other parties in this: that they were deprived of the

use of water at a time when they required it for the purpose of irrigation or other beneficial use; and (6) that they had notice of such adverse user and claim. The evidence shows that the appellants failed to establish any of these elements. The evidence to sustain such right must be clear and positive. It cannot be sustained or made out by inference or presumption. (Kurz v. Miller, 89 Wis. 426, 62 N. W. 182; Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588; Dhein v. Beuscher, 83 Wis. 316, 53 N. W. 554.) Nothing must be left to conjecture or presumption. (Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527.) Such possession must be to the exclusion of all others. (Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195.) An entry or use must be open and notorious to give the owner notice of hostile claim. (Millett v. Lagomarsino (Cal.), 38 Pac. 308.)

HONORABLE LLEWELLYN L. CALLAWAY Judge of the Fifth Judicial District, sitting in place of MR. JUSTICE SMITH, delivered the opinion of the court.

An extended statement of the case will not be useful. Suffice it to say that, while the district court of Broadwater county was trying the cause which seems to have involved all the waters of Crow creek, the appellants seasonably requested the court to find them to be the owners of the right to use the waters claimed by them by adverse user, rather than by appropriation. The court refused to make any finding on the subject of adverse user. It gave appellants a water right based upon appropriation solely, which made them subsequent to many other appropriators on the stream. A decree having been entered, appellants moved for a new trial, which was denied. They then appealed to this court from the order denying the motion, and from the judgment.

The respondents moved to dismiss the appeals, assigning several grounds of a technical kind. These we brush aside, because the grounds are purely technical, and because the law favors the right of appeal. A substantial compliance with the

statutes and the rules of this court is all that is required. (Payne v. Davis, 2 Mont. 381; Morin v. Wells, 30 Mont. 76, 75 Pac. 688; Butte Mining & Milling Co. v. Kenyon, 30 Mont. 314, 76 Pac. 696.)

Appellants rely upon this point alone: They say the court erred in failing to act upon their request for a finding that they were entitled to the water claimed by them by adverse use; that, upon the evidence, it should have made such a finding in their favor. We have concluded that the court did not

so err.

The appellants having alleged themselves to be the owners of the right to use the waters claimed by them, the burden is on them to prove it. (Revised Codes, secs. 7886, 7972; Long on Irrigation, sec. 92; Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111.) Because of the nature of the right, the elements constituting it must be proven satisfactorily and unequivocally; and no doubtful inference will suffice. The right by adverse user, or prescription, is acquired, in some measure, by an invasion of the rights of others-it bears a sort of kinship, by refined descent, to the "possession by bow and spear" of an earlier time; it is based upon a positive assertion of right in and by the water user in derogation of the rights of everyone else. In order to constitute an ownership by adverse user, say the authorities, the use must have been open, notorious, continuous, adverse and exclusive under a claim of right, for the statutory period, which in this state is now ten years. (See Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, and authorities cited.) While the authorities use both the words "open" and "notorious," the use of either would seem to be sufficient, as they are practically synonymous when used in this connection, as inspection of the dictionaries will show. We advert to this because of the contention of counsel respecting the pleadings. Because of the conclusion to which we have come, we do not make further mention of the pleadings.

It is essential that the use be shown to have been adverse. Proof of the mere use of the water during the statutory period

is not sufficient. It is necessary that during the entire period an action could have been maintained against the party claiming the water by adverse user by the party against whom the claim is made. (Talbott v. Butte City Water Co., supra; Chessman v. Hale, 31 Mont. 577, 79 Pac. 254, 68 L. R. A. 410; Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059; Watts v. Spencer, 51 Or. 262, 94 Pac. 39.) In the case last cited, Watts v. Spencer, the supreme court of Oregon said: "The acts by which it is sought to establish the prescriptive right must be such as to operate as an invasion of the right of the person against whom the prescriptive right is asserted, and will give cause of action in his favor. (Long on Irrigation, sec. 90.) No adverse user can be initiated until the owners of the superior right are deprived of the benefit of its use in such a substantial manner as to notify them that their rights are being invaded. (Wimer v. Simmons, 27 Or. 1, 50 Am. St. Rep. 685, 39 Pac. 6; North Powder Co. v. Coughanour, 34 Or. 9, 54 Pac. 223; Bowman v. Bowman, 35 Or. 279, 57 Pac. 546; Boyce v. Cupper, 37 Or. 256, 61 Pac. 642." See, also, Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334.)

In Talbott v. Butte City Water Co., supra, this court said: "No use of water by a subsequent appropriator can be said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use for it invades no right of his, and cannot even initiate a claim adverse to him." And in Norman v. Corbley, supra, it is said: "There is no evidence in this record that plaintiff did not have all the water required for his use from the date of its appropriation to the time this dispute arose, and the claim of a prescriptive right cannot be maintained."

Upon the record before us it cannot be said that appellants have proved that the use of the water has been adverse. They do not claim that there is any direct proof in the record that respondents were deprived of any water to which their appropriations entitled them, at any time when the respondents required it. They say the requisite proof is furnished by tes