give him a new trial. An inspection of the provision of the statute shows that the law requires that the value of specific portions be found only when the instruction of the court require the jury to do so. This provision undoubtedly places the finding of the value of specific articles within the discretion of the court. The court may require it, or dispense with it, according to the circumstances of the case as shown by the evidence. If either party desire it, they ought to request that the jury be instructed so to find. If they fail to do so, they ought not to be allowed to take advantage of it on appeal.

The appellant makes the point that it is error in the verdict that the jury did not find whether or not the property should be returned to the defendant. It is difficult to understand why the jury should find upon that matter at all. If they find as a fact that the property belongs to the defendants, the law will adjudge that it will be returned to them unless some substantial reason be shown why it cannot be done. Wells, Rep. §§ 753, 754; Waldman v. Broder, 10 Cal. 378; Underwood v. White, 45 Ill. 437. In the latter case the court says, if the verdict is for the defendant, no reason is perceived why he should not be restored to the possession of the property of which he had been wrongfully deprived. Section 4471 of our Code of Civil Procedure provides that, "in the execution for the delivery of personal property, it must require the sheriff to deliver possession of the same to the person entitled thereto, and at the same time require the sheriff to satisfy any costs and damages recovered by the judgment out of the personal property of the person against whom it is rendered." Under this statute the plaintiff does not have the option to return or pay for the property as he may elect. It must be returned in specie, if it can be done; and, if it cannot be so returned, he must pay the value thereof. The statute does not in terms say that the jury must find whether or not the property must be returned. It declares: "If, finding for defendant, they also find for the return thereof, they must also find the value." But under what circumstances they must find for the return is not specified. It is possible that the party having taken the property in consequence of its loss or other cause may not be able to return it, and that he may desire a finding by the jury to that effect. If so, we think he ought to request such a finding; and, if he fails to do so, he cannot complain. Section 4395 provides "that when the verdict is announced, if it is informal or insufficient in not covering the issues submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out." If the objection is not made at the time the verdict is received, it is too late to do so afterwards. The statute, indeed, saves an exception to the verdict, but it is to the verdict as it is received; and, if it is suflicient to sustain a judgment, it will not be disturbed. Section 4396 declares that verdicts are either general, which pronounce upon all or any of the issues; or special, by which the jury find only the facts, leaving the judgment to the court. In this case the verdict is general, pronouncing upon all of the issues in the case. Section 4453 provides that, in an action to recover the possession of personal property, “if the property has been delivered to the plaintiff, and the defendant demand a return thereof, [which is the case at bar,] judgment may be for a return thereof, or for its value in case return cannot be had.' It will be observed that the provision requiring judg ment for the return is not mandatory. The language is that judgment may be entered for a return. This would seem to give the court a discretion to omit in the judgment an order for its return under certain circumstances where the substantial rights of both the parties could be subserved thereby. In Brown v. Johnson, 45 Cal. 76, the court had entered judgment for the value and damages, without any direction for the return thereof. On appeal the judgment was sustained; the court holding "that in support of such a judgment, where the record discloses nothing on the point, they will intend that the facts actually appearing below were such as to warrant its rendition." This authority would indicate that, in rendering judgment, the court would

look to the evidence to determine whether the return of the property should be adjudged to the party. If this is correct, the finding of a jury as to a return thereof seems of little value in determining the rights of the party, unless, indeed, they should make a finding as to the actual status of the property, and thus give the court a finding upon all the facts necessary to the entry of a judgment. We think the verdict sufficient to enable the court to enter the proper judgment, under the authorities cited. See, also, Wells, Rep. § 509; Waldman v. Broder, supra; Glann v. Younglove, 27 Barb. 480; Coit v. Waples, 1 Minn. 134, (Gil. 110.)

It is further objected that the verdict is against law, because it finds both damages and interest. These are simply distinct findings of fact. Either may be omitted in entering judgment, or, if an erroneous judgment has been already entered, it may be corrected in the lower court, or, on appeal, the judgment may be reversed, and the cause remanded, with direction to enter a judgment for the amount, less the damages, under the authority of Berson v. Nunan, 63 Cal. 550; Freeborn v. Norcross, 49 Cal. 13.

The order of the court overruling the motion for a new trial is affirmed.

HAYS, C. J., and BRODERICK, J., concurring.

(2 Idaho [Hasb.] 411)

MALAD VAL. IRR. Co. v. CAMPBELL.

(Supreme Court of Idaho. February 20, 1888.)

1. WATERS AND WATER-COURSES-WATER-RIGHTS AND EASEMENTS-PRIOR APPROPRIATION.

Prior appropriation of all the waters of a stream, applied to a useful purpose, gives the better right to the tributaries, and all the direct and immediate sources of supply of the stream; and, when this right once vests, it must be protected and upheld.

2. SAME.

Rights cannot be acquired to the waters of springs situated along the channel of a stream, and which constitute its direct source of supply, by entering upon, cleaning out, and thereby increasing the water supply, as against prior appropriations in good faith of the whole of the waters of the stream. Query, whether one can bring water from another or independent source into a natural stream, whose wa ters have been appropriated, and use the channel of such stream to conduct the waters, thus brought in, to another point, to be there diverted and used, suggested, but not decided.

(Syllabus by the Court.)

Appeal from district court, Oneida county.

D. W. Standrod and J. T. Morgan, for appellant. Smith & Smith, for respondent.

BRODERICK, J. This action was brought by the Malad Valley Irrigating Company against Nephi Campbell, in the district court in and for Oneida county, to determine the right to the possession and use of the waters of a certain stream in said county, known as "Campbell Creek," and to restrain the defendant from diverting or interfering with the use and enjoyment of the same. The complaint alleges that the plaintiff is a corporation, and is the owner of and entitled to the control and use of all the waters of a certain stream known as "Devil Creek," situated in said county, together with all its tributaries; that it and its predecessors in interest have for a long number of years owned, controlled, used, and enjoyed said waters, and peaceably distributed the same among the farmers and residents along said stream for the irrigation of agricultural crops. It is further alleged "that the defendant on or about the 1st day of June, 1885, wrongfully and unlawfully, and without color of right or title, without the consent of plaintiff, and against its will, did enter upon one of the tributaries of said Devil creek, to-wit, the stream known as Campbell Creek,' and which enters said Devil creek on the pre

ises of the defendant, and did wrongfully and unlawfully construct certain dams, ditches, and flumes, and did divert the whole of the waters of said Campbell creek, and has ever since continued to divert said waters, and that plaintiff, by said wrongful acts of the defendant, has been, during the whole of said time, deprived of the use of all the waters of said stream, to the great and irreparable injury of this plaintiff." The defendant answered, specifically denying the allegations of the complaint; and, as a further defense, alleges that in the year 1877 he went upon the stream known as "Campbell Creek," and appropriated all the waters of said creek, by constructing dams, cleaning and digging out springs, clearing brush, and diverting the whole of said waters from their natural channel, and using the same for the purpose of agriculture, etc.; that, at the time, the whole of said stream ran to waste, and was entirely unappropriated; that, since the appropriation of said waters in the year last aforesaid, this defendant has continuously used said waters for the purpose of irrigating his crops. The defendant then pleads in bar the statute of limitations. At the November, 1886, term of said court, the cause was tried without a jury, and the following are the findings of fact and conclusions of law made and filed therein: "(1) It is found that the plaintiff and its predecessors in interest have for about twenty years used and enjoyed the waters of the stream known as Devil Creek,' in Oneida county, Idaho, for the irrigation of agricultural crops. (2) That plaintiff was incorporated in April, 1882; all parties owning water-rights in Devil creek, including the defendant, joining in such corporation. (3) That Campbell creek is a tributary of Devil creek, entering said stream above the dam at which plaintiff's grantors originally appropriated the waters of Devil creek. (4) That for the last three years the defendant has, at times, set up some claim to the right to the exclusive use of Campbell creek, but that previous to that time it had been used by and controlled by plaintiff and its grantors; that plaintiff and its grantors have never relinquished their claim to the use of the waters of said stream." As conclusions of law, it is found: "(1) That plaintiff is the owner and is entitled to the free use and control of all the waters of the stream known as Campbell Creek;' (2) that the defendant ought to be forever enjoined from using or in any way interfering with the waters of said Campbell creek, except under the license and permission of plaintiff. And it is ordered that judgment be entered accordingly." Judgment was thereupon entered, giving to the plaintiff the free use and control of the waters of Campbell creek. An application was made for a new trial, which was denied, and from the judgment and the order overruling the motion for new trial the defendant appealed, and assigns as error-First, that the fourth finding of the court is unsupported by the evidence, and that the findings are against law.

We will consider these questions together. Whatever conflict there may seem to be in the adjudged cases in this country relating to the subject of water-rights, the law of this territory is that the first appropriation of water for a useful or beneficial purpose gives the better right thereto; and when the right is once vested, unless abandoned, it must be protected and upheld. The legislative will is clearly expressed in the following language: "As between appropriators, the one first in time is the first in right." Section 3159, Rev. St. Idaho. See, also, Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, Id. 670. It will be observed from the answer in this case that the defendant does not claim to have brought any water into Campbell creek from an independent source, by reason whereof he is entitled to the use of the channel of the stream to conduct the waters, thus brought in, to his ranch, so as to invoke the principal enunciated in Ditch Co. v. Vaughn, 11 Cal. 143. Nor is it alleged that the defendant improved the channel and sources of supply, and thereby increased the flow of the waters in the stream, and that he is entitled to such increased flow. The allegation is "that in 1877 he went upon the stream now known as Campbell Creek,' and appropriated all the waters

of said creek by constructing dams, cleaning and digging out springs, clearing brush, and diverting the whole of said waters from their natural channel, and using the same for the irrigation of agricultural crops. It is further alleged that, when the defendant entered upon this work, the whole of the stream was unappropriated; and hence the question of the first appropriation of the waters of the stream was a material issue, and the one upon which the decision of the case turned. The fourth finding was responsive to this issue, and there is evidence in the transcript to support it. It is true, the defendant testified that by his labor in cleaning out springs, etc., he increased the flow of the water in the stream, but there is no predicate in the pleadings for this evidence. Had the pleadings justified the introduction of this testimony, it could not have warranted a different judgment from the one rendered. It is considered that Campbell creek has had a well-defined channel for more than 20 years, and that it is a tributary of Devil creek. The court found, in substance, that the plaintiff and its predecessors in interest had used and enjoyed the whole of the waters of Devil creek for about 20 years last past for the irrigation of agricultural crops. Campbell creek, being a tributary of Devil creek, was appropriated long before the defendant attempted to exercise any control over it, and the court so finds. The testimony all tends to show that the springs cleaned out by the defendant were along and in the immediate vicinity of Campbell creek, and that these springs constituted the principal and immediate sources of supply for the stream. If persons can go upon the tributaries of streams whose waters have all been appropriated and applied to a useful and legitimate purpose, and can take and control the waters of such tributaries, then, indeed, the sources of supply of all appropriated natural streams may be entirely cut off, and turned away from the first and rightful appropriators. To allow this to be done would disturb substantial vested rights, and the law will not permit it. We are of opinion, therefore, that the findings are not obnoxious to the objections urged against them. Strait v. Brown, 16 Nev. 317. We do not wish to be understood as deciding that one cannot bring water from other or foreign sources into a natural stream, whose waters have been appropriated, and use the channel of such stream to convey the water, thus brought and emptied in, to another point, to be there diverted and used. This question is not now before us, and it will be time to decide it when presented. See, as to this point, Wilcox v. Hausch, 64 Cal. 461, 3 Pac. Rep. 108; Burnett v. Whitesides, 15 Cal. 35. The judg

(Supreme Court of Idaho. February 20, 1888.)

1. NEW TRIAL-GROUNDS FOR-INSUFFICIENCY OF EVIDENCE-JUDGMENT CONTRARY TO LAW.

Insufficiency of the evidence to justify the judgment, and objection to the judgment as being contrary to law, are not grounds upon which a motion for a new trial can be granted.

2. TRIAL-BY THE COURT-AMENDMENT OF ORDER DIRECTING ENTRY OFf Judgment. It is not error for the court to amend its conclusions of law after they are filed, and before entering judgment, or to vacate an order directing judgment to be entered for a certain amount, and thereafter render judgment for a different amount, when the findings of fact warrant it.

3. PRACTICE IN CIVIL CASES-WAIVER OF NOTICE OF MOTION.

Voluntary appearance of attorney, and participation in the argument of a motion, waives notice of such a motion.

(Syllabus by the Court.)

Appeal from district court, Ada county.

D. P. B. Pride, for appellant. R. Z. Johnston and Huston & Gray, for respondent.

BUCK, J. This is a suit in equity, brought by the plaintiff, claiming to be a co-tenant in a certain water-ditch, and praying for an accounting by his co-tenant, the defendant. It was tried at the April term, 1887, of the district court in Ada county, Second judicial district, and a decree entered adjudging the plaintiff to be the owner of one-fifth of said ditch. At the same term Jonas W. Brown was appointed referee to take an accounting between the plaintiff and defendant, and report his findings of fact and conclusions of law. At the October term, 1887, the report of the referee was filed and approved, and it was ordered that judgment be entered in accordance therewith for the sum of $1,127.45. On the same day, to-wit, October 1, 1887, the plaintiff made a motion that the judgment herein be set aside, and the report of the referee herein be amended by setting aside the conclusion of law, and render judgment upon the facts reported; and thereupon the court ordered that the conclusions of law herein, and the order for judgment heretofore entered, be set aside, and judgment be, and is hereby, entered upon the findings of fact of the referee for plaintiff, and against defendant, for the sum of $1,382.22. The cause comes into this court on appeal from the said judgment, and from the order of the court overruling the motion for a new trial. The errors assigned in appellant's brief are: (1) That the court erred in overruling the motion for a new trial; (2) that it was error in the court, after having approved the report of the referee, and judgment having been entered up accordingly by the clerk for $1,127.45 and costs, to set the same aside, and enter a new judgment for the sum of $1,382.22 and costs; (3) that the court erred in setting aside said judgment, and ordering the report of the referee to be amended by setting aside the conclusions of law, inasmuch as there was no legal service of order upon defendant to show cause; (5) that the judgment is not supported by the findings. The fourth suggestion of error by appellant is that the proper relief of plaintiff from the judgment of $1,127.45 which he claims was first entered was a motion for a new trial. This will be disposed of in the consideration of the other specifications of error.

The motion for a new trial was based on the following specifications of error: (1) That the evidence does not support the judgment; (2) that the judgment is contrary to law. Neither of these objections can be considered on a motion for a new trial, and the motion was properly overruled. Hayne, New Trials & App. § 96; Martin v. Matfield, 49 Cal. 42; Code Civil Proc. 4339.

The second assignment of error seems at variance with the record in its recital of facts. The judgment roll shows but one judgment in the case. Prior to the entry of such judgment, the court had made an order that the report of the referee be approved, and that judgment be entered in accordance therewith for the sum of $1,127.45. This was simply a direction to the clerk to enter judgment, but did not constitute a judgment. Afterwards on the same day the court made a second order that the conclusions of law therein, and the order for judgment heretofore entered, be set aside, and that judgment be, and is hereby, entered upon the findings of fact of the referee for plaintiff, and against the defendant, for $1,382.22. That part of appellant's argument upon the power of a court to amend its findings cannot be considered, for the reason that the record fails to show that the findings were amended after judgment was entered.

The point is made that the order setting aside the conclusions of law of the referee, and for entry of judgment first made, was error, because no notice of said motion was served upon the attorney of defendants. The record shows, as recited in such order, that the attorney for defendant appeared and contested such order. Such appearance, unless made specially, would constitute