quested finding relating to his father's alleged conversations with the creditors, and the alleged extensions of credit based thereon (refused findings 11-14), it was proper for the trial court to refuse to make such findings if he disbelieved the evidence proffered in their support; nor should we marvel at that, as the evidence was somewhat hazy and uncertain, and was so completely overthrown by the mother's testimony, by many circumstances, and by various significant incidents which developed in the course of the protracted trial. And these observations are pertinent even in the consideration of the depositions which, though they did tend to show some sort of bargain between plaintiff and his father in 1893, were materially weakened by cross-examination and entirely overthrown by other evidence. Thus Tobey, a retired banker, formerly of Washington county, now residing in Maine, testified:

"Q. Do you recall any statement made by John Alexa to Mr. Stackpole in the month of March, 1893, relating to this indebtedness any other statement? A. There was some talk about his father either deeding him or willing him a part of his farm-some of the land-in consideration of his helping to pay the indebtedness, but just what the conversation was I could not say.

"A. As I remember, he was to have either the farm or a portion; I do not remember he was to have the whole of it. I do remember he was to be his father secured him in that way-with a promise of that kind. There was some such promise, but it is quite a while ago, and I, as I said, Mr. Stackpole did most of the work, had most of the talk with the two Alexas. Of course I heard some of it, and I knew about the transaction.

"Q. Tell anything that you know, that you heard, that you remember having heard in relation to the arrangements between John Alexa, Sr., and John M. Alexa. A. The sum and substance was: John M. Alexa was to help his father pay the debt and his father was to either give by deed or will a part of the landI do not remember how much, whether it was all or part. *

"

Cross-Examination.

"Q. And was there anything more in substance to these conversations than that the young man was to help his father out, and the father would see that he was compensated in some way for whatever he did? A. Yes, sir; that was substantially as I remember it. •

"Q. And during the failure of crops and hard times he managed his affairs, and was not seriously financially embarrassed, to your knowledge? A. No; I do not think he was."

1893 or 1894, or about that time, make the ex"Q. Did you or your bank at any time in tension of the indebtedness contingent or conditional upon young John assuming the management of the place? A. That was the agreement; but if you ask whether we took the initiative in requiring this, we did not.

"Q. There was on the part of you and your bank no coercion upon the old gentleman to have his son take the management of the place? A. There was not. *

"Q. You did not require it? A. We did not require it.

"Q. Do you know how much young John owned in his own name in 1893? A. We understood he owned a small tract, perhaps, say, 40 acres.

"Q. Were you or your bank in 1893 pressing old John for payment of his indebtedness? A. We urged him, with others, to reduce his indebtedness.

"Q. Did you in 1893, or at any other time, threaten him that unless he turned the management of his farm over to his son John you would close him out? A. We did not. * *

"Q. And from 1893, and up until the time you left Kansas, young John, by the management of the business in that way, had increased his own personal real estate from 40 acres to 240, had he not? A. Yes, sir."

It will be noted that the conversation between plaintiff's father and the elder Taft, even if it was truthfully and accurately detailed by the deponent, did not square with the contract sued on-an agreement between the father and mother and himself that he was to have all his father's property subject to a life estate for his mother. Nor did that conversation pretend to recite the contract nor its consideration. Neither of the retired bankers testified to any fact which would show an agreement to which plaintiff's mother was a party, and we have no other agreement to consider.

[3] Counsel call attention to the rule enforced in Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125. That case, including Mr. Justice Burch's dissenting opinion, is an instructive discussion on the trial court's duty to make special findings of fact at the request of a litigant. While disagreeing in the application of the rule itself, the majority and minority opinions agreed that the special findings required by the Code are those which "Q. You may state what that arrangement deal with the ultimate facts upon which the was. A. Mr. Alexa informed my father that rights of the parties directly depend, and in the future most business transactions would from which the correctness of the judgment be conducted by his son, Mr. John M. Alexa. can obviously and readily be ascertained, not

Another retired banker of Washington county, F. A. Taft, now residing in California, deposed:

(193 P.)

ultimate facts in issue are to be established. [ sustains this view, and cites ample authoriTested by this rule, the special findings which ties in its support. It seems to me that that were made by the trial court descended into point should settle this case. even greater detail than the rule required. dissent. The one finding, No. 20, that there never was any such agreement between plaintiff and his parents as sued on, was a finding on the only controlling, ultimate, issuable fact discernible in this lawsuit (In re Appeal from Survey, 106 Kan. 222, 187 Pac. 677) and all else was mere evidentiary detail.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Sanpete Coun- [ above defendant's said land, and the water ty; George Christensen, Judge.

Action by Parley P. Peterson and another against Peter Lund. From a judgment for plaintiffs, defendant appeals. Reversed and

remanded.

Lewis Larson, of Manti, for appellant.
Bean & Hunt, of Richfield, for respondents.

feeding said springs this defendant is in-
formed and believes, and therefore alleges,
come from a stratum entirely different from
that which feeds the defendant's well"; that

the defendant drove said well to use the wa-
ter flowing therefrom, and has used the same
for domestic and irrigating purposes, and
that the use thereof is necessary to produce
benefits of his land.
crops on and for the full enjoyment of the
The defendant also
prayed for affirmative relief. The plaintiffs,
in reply, denied defendant's counterclaim.

It seems the court made an order appointing two commissioners to make measurements of the flow of the water from said springs and from defendant's well. Measurements were accordingly made, both when the well was sealed or closed and when it was flowing. The result of those measurements

was as follows: The first measurement of the flow of the springs, it seems, was made on August 26, 1917, when the well was closed. On that date, according to the measurement, the spring discharged 27 second foot of water. Another measurement was made on August 31st under the same conditions, when the springs discharged .26 second foot of water. These two measurements were followed by a series of six measurements of the springs with the well open and flowing. The first measurement was made on the 1st and the last on the 15th of September, 1917. The average discharge from the springs during that period of time was .20 second foot, or

FRICK, J. The plaintiffs, in substance, allege that at all times mentioned in the complaint and at the commencement of the action, they were the owners of certain lands in Sanpete county, Utah, describing them; that said lands were arid and without irrigation, sterile and nonproductive; that near the eastern boundary of said lands there were two springs, commonly known as the Shumway Springs, the waters of which the plaintiffs and their predecessors in interest had impounded and used for more than 30 years to irrigate said lands, and had, by the use of the water from said springs on said lands, produced crops and had improved the land by erecting valuable buildings thereon, etc.; that prior to the acts of the defendant, which are complained of, the plaintiffs and their predecessors in interest had used and appropriated all of the waters of said springs for the purposes aforesaid, stating the character and mranner of the use of said water; that in August, 1916, the defendant "drove what is commonly called a 4-inch well" by driving a 4-inch pipe into the earth on his lands which adjoin plaintiffs' lands on the west, and by means of the well or pipe aforesaid tapped 89% gallons per minute. The largest disthe "subterranean current or flow which charge was on the 1st of September, when it feeds and supplies plaintiffs' said springs was .22 second foot, and the lowest was on from said springs, the 15th, when the springs discharged .19 and ever since has drawn from said springs, second foot. During the same priod of time, an artesian flow of water," which flow di- commencing, however, on the 31st of August, minishes the flow from said springs, to plain- | 1917, eight measurements were taken of the tiffs' damage, etc. There were other ma-flow from defendant's well. The average flow terial allegations, which, however, it is not necessary to set forth here. The plaintiffs prayed for an order permitting them to enter upon defendant's premises to make measurements of the water flowing from said well, prayed for a perpetual injunction and for general relief, with damages. The defendant interposed a general demurrer to the complaint, which was overruled. After the overruling of the demurrer the defendant filed an answer, in which, in effect, he denied all of the allegations of the complaint except that the springs existed as alleged. He de nied, however, that said springs at any time or at all discharged in excess of .25 second foot of water. As an affirmative defense the defendant averred that he owned certain lands adjoining plaintiffs' land which, without water, are arid, sterile, and unproductive and that all of defendant's lands lie over an artesian water basin; that plaintiffs' said springs are "to the east of defendant's land

and which draws *

from the well during that period was .2125 second foot, the greatest flow being .24 second foot and the lowest .21. Other measure ments of the springs with defendant's well open and flowing were taken as follows. Four measurements were made conrmencing February 27 and ending on April 14, 1918. These measurements, for some reason, were taken in cubic inches and gallons per minute. The average flow on the springs during the latter period was 292 cubic inches, or 76 gallons per minute. The greatest flow from the springs during this period was on February 27th, when, according to the measurements, the springs discharged 432 cubic inches, or slightly over 112 gallons per minute, and the lowest was on April 14th following, when the discharge was 243 cubic inches, or 63 gallons per minute. During the same period of time the same number of measurements were made of the flow from defendant's well. The average flow of the well was 367 cubic inch

minute.

(193 P.)

The greatest flow from the well, the waters of the springs for irrigation and was on February 27th, when it amounted to domestic purposes for a period of more than 378 cubic inches, or slightly in excess of 98 25 years; that such use was "open, notorious, gallons per minute, and the lowest was on continuous, uninterrupted, exclusive, and adApril 14th, showing a flow of 360 cubic inch- verse." es or a little over 73 gallons per minute. The defendant's well was then sealed, and two other measurements were made of the flow of the springs. The first was made on April 30, 1918, when the discharge from the springs was 288 cubic inches, or a little in excess of 74 gallons per minute; and the second measurement was made on May 4th following, when the springs discharged 352 cubic inches, or a trifle over 92 gallons per minute.

The experts who testified both on behalf of plaintiffs and defendant gave it as their opinion that both the well and the springs were fed from the same source, namely, from the artesian water basin underlying the lands of both parties; that the artesian wells which were driven into the basin would tend to lessen the pressure of the water within the basin, and thus might, and probably did, affect the flow of the springs; that it was possible that defendant's well in that way affected the flow of the springs, but that there might be other wells which likewise affected the flow from the springs, which was a matter, however, which could not be affirmed with certainty.

The foregoing are all the measurements made by the plaintiffs. There was some other evidence produced on the part of the defendant, which was to the effect that, according to the investigations and a report made by one G. B. Richardson, in 1905, acting on behalf of the United States government, concerning the The evidence also showed that the elevation "Underground Water in Sanpete and Central at the point where defendant's well is located Sevier Valleys, Utah," the Shumway Springs, is about 12 feet lower than the elevation of that is, the springs in question, discharged water at the rate of 65 gallons per minute. In addition to that there was also some evidence on the part of the defendant to the effect that the springs at or about the time of the trial discharged 70 gallons per minute. There was also evidence that Mr. Tanner, a One of the witnesses for the plaintiffs who former state engineer of Utah, made measure was authorized to make measurements of the ments of the flow of water from the springs, flow from the springs also testified that the which measurements showed a discharge of measurements were not absolutely accurate, 78 gallons per minute. The latter measure- and that he had made mistakes in his comments, it seems, were made some time preced-putations in determining the quantity of the ing the trial.

the springs, and that if the well pipe were extended upwards the water would automatically flow from the pipe at an elevation of about 14 feet above the surface, or at an elevation of about 2 feet higher than the springs.

flow. In that regard the court also found that, although the measurements were not "made as accurately as might have been desired," yet the measurements showed that the flow from defendant's well "diminished the flow of the springs."

Upon substantially the foregoing evidence the court found the issues in favor of plaintiffs, and, upon the findings, based its conclusions of law and entered judgment adjudging the flow from the springs to be .24 second foot of water, which quantity the court adjudged to the plaintiffs, and the defendant was enjoined from interfering with that flow.

The evidence is without conflict that defendant's well is 1,984 feet westerly from plaintiffs' springs; that the well is driven into the earth to a depth of 150 feet, and penetrates a stratum of sand and gravel for a distance of about 20 feet, and that the water flowing from the well comes from said stratum; that there is an artesian water basin underlying both the plaintiffs' and the defendant's lands; that said basin extends north of the springs about 20 miles and south thereof about 10 miles, east about 2,000 feet and west about 4 miles; that the artesian basin is therefore about 4 miles wide by about 30 Defendant's counsel assails the findings, miles in length and covers an area of approxi- the conclusions of law, and the judgment. mately 120 square miles; that within that While counsel, in his brief, does not contend area there are "hundreds of flowing wells" that the common-law rule of percolating and known as artesian wells, some of them being to seepage waters should control in this case, the north, some to the south, others to the yet he insists: (1) That the doctrine governeast, and others still to the west of the ing the appropriation of water, which is first springs; that some of the wells to the north in time first in right, cannot be applied to this and northeast are much nearer to the springs case; and (2) that in view of the artesian wathan defendant's well; that while neither rain ter basin which underlies all of the lands in nor snow storms appeared to affect the flow question, and which, according to the evidence, from the springs, yet that the irrigation above must, for the purposes of this case, be taken to and to the east of the springs during the latter be the source of supply of plaintiffs' springs part of the irrigation season, that is, during and of defendant's well, and of all other wells the months of July and August, did increase within the area of the artesian basin, for the flow of water therefrom; that plaintiffs that reason either the rule known as the rule and their predecessors in interest had used of "reasonable use" or the cognate rule of

193 P.-69

"correlative rights" should control in this,

case.

of no moment whether water reaches a certain "It is probably safe to say that it is matter point by percolation through the soil, by a subterranean channel, or by an obvious surface channel. If by any of these natural methods it reaches the point, and is there appropriated in accordance with law, the appropriator has a property in it which cannot be divested by the wrongful diversion by another, nor can there be any substantial diminution. To hold otherwise would be to concede to superior ownthat go to create a stream, regardless of the ers of land the right to all sources of supply rights of those who previously acquired the right to the use of the water from the stream below."

In McClellan v. Hurdle, 3 Colo. App. 430, The doctrine of reasonable use is 33 Pac. 280, the law respecting the right of thoroughly discussed in the following cases: appropriation is very aptly stated in the folKatz v. Walkinshaw, 141 Cal. 116, 70 Pac. lowing words: 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35; Barton v. Riverside Water Co., 155 Cal. 509, 101 Pac. 790, 23 L. R. A. (N. S.) 331; Miller v. Bay Cities Water Co., 157 Cal. 256, 107 Pac. 115, 27 L. R. A. (N. S.) 772; Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811; Erickson v. Crookston, etc., Co., 100 Minn. 481, 111 N. W. 391, 8 L. R. A. (N. S.) 1250, 10 Ann. Cas. 843. Numerous other cases in which the doctrine of reasonable use, as well as that of correlative rights, is discussed, could be cited; but, in view that for the reasons hereinafter stated it is not our purpose at this time either to discuss or determine what rule should control in this case, we refrain from pursuing this subject further. In view, however, that the case must be remanded to the district court for further proceedings, it becomes necessary for us as a guide to that court to advert to the law of this state which controls the appropriation and acquiring of rights to the use of water of streams and springs.

Our decisions are practically to the same effect. See Sullivan v. Mining Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186, and Patterson v. Ryan, 37 Utah, 410, 108 Pac. 1118.

In discussing the rule announced in the decisions of the foregoing cases it must be assumed that there was a legal appropriation. [1] The facts in this case are beyond dis- With respect to what constitutes a sufficient pute that the springs in question constantly appropriation of water under the law in this discharge, and for many years have discharg- jurisdiction, we refer to the case of Sowards ed, a considerable quantity of water; that v. Meagher, 37 Utah, 212, 108 Pac. 1112, and the springs always flowed, and continue to the cases there cited. If, therefore, the plainflow, a visible and open stream of water, tiffs have appropriated the waters of the which, under the law of this arid region al- springs in question, and have used the same ways has been, and now is, the subject of for a beneficial purpose, as those terms are appropriation, the same as any other unap- commonly understood and applied, then plainpropriated water from any visible and open tiffs would have acquired a right to the use stream or water course would be. In view of the waters flowing from the springs which of the importance of the subject, all of the could not be interfered with without their Legislatures, as well as all of the courts with- consent. Under such circumstances the rights in the arid zones of this country, have not of the plaintiffs in the use of the waters flowonly recognized the right of appropriating the ing from the springs would be protected in a waters flowing from springs, but that right has been established and fixed beyond question. Congress has also fully established and protected the right. It is also well settled that in acquiring the right to the use of water flowing from springs the source of the water is not controlling. That proposition has frequently been decided by the courts. In Le Quime v. Chambers, 15 Idaho, 409, 98 Pac. 418, 21 L. R. A. (N. S.) 76, it is expressly held that it is not important "whether the waters are from a well-defined subterranean stream or purely seepage or percolating waters." It was accordingly held in that case that where the waters appear on the surface in the form of springs, such springs are subject of appropriation precisely as any waters from any stream or water course would be. In Brosnan v. Harris, 39 Or. 148, 65 Pac. 867, the law

is stated thus:

"There is no difference in the right of appropriation between springs and running streams, and the prior appropriator of the water of a spring will be as much protected as the appropriator of the waters of a stream."

court of equity, and any interference there with would be enjoined. The record in this case presents a situation, however, which has not heretofore been presented or passed on in any other case in this jurisdiction, and for that reason, as well as for others, we are loth to determine and to permanently fix the rights of the respective parties respecting the waters in question, or to lay down any hard and fast rule governing cases, where the facts and circumstances are as they appear from the record in this case, without being fully advised with respect to all the circumstances which may affect the result.

not, at least not in the usual and ordinary [2] The plaintiffs in their complaint did manner of pleading, allege the appropriation While it is true that they allege that they of the waters flowing from the springs. have used the water, etc., yet counsel for defendant vigorously insists that the allegations of the complaint, and the evidence produced by the plaintiffs in support thereof, when considered together, are insufficient to justify a finding of appropriation of water under our