Appeal from Utah County, Fourth District from the spring should be limited to the four months commencing May 1st and ending September 1st of each year, and also failed to so limit her rights in the decree. In so far as the findings extend the defendant's right to use the waters from said spring during the period of time aforesaid, they are not supported by the evidence, and in so far as the decree denies the plaintiff the right of the use of waters from said spring during the whole of the year, the decree, under the circumstances, is contrary to law. As between the plaintiff and the defendant, therefore, the findings and decree as they now exist cannot be sustained. As to them, therefore, the decree should be, and it accordingly is, reversed; and the cause is remanded to the district court of Utah County, with directions to make the findings of fact conform to the evidence in the following particulars: To make findings to the effect that the defendant has a prior right to the use of all of the waters from said spring from the 1st day of May to the 1st day of September of each year, and that during said period of time the plaintiff has no right whatever in or to the waters flowing from said spring or any part thereof; that from the 1st day of September in each year to the 1st day of May in the following year the plaintiff has the right to take and use so much of the waters of said spring as he may need for household or culinary purposes in his home. The court shall also enter a decree to the effect that in using the waters from said spring the plaintiff shall in no way interfere with said spring or do any act or thing by which the surface flow thereof or the underground seepage therefrom shall be diminished in quantity or quality during the period of time commencing May 1st and ending September 1st of each year. The court is also directed to modify any other part of the findings, conclusions of law, and decree that may be necessary to make them conform to the foregoing directions. In so far as the findings, conclusions of law, and decree conform to the foregoing modifications and directions as between the plaintiff and the defendant, they are approved and affirmed. Plaintiff's counsel, however, also assail the findings and decree upon the ground that neither the quantity of the water that the defendant may use nor the amount of the land Cleary v. Daniels, 50 Utah 494 that she may irrigate is definitely fixed in the findings or decree. In view, however, that the plaintiff in his complaint only claims the waters flowing from the spring, and in view that he in no event has any rights to the waters of said spring, except for the period of time and for the purpose before stated, he in no way is affected, much less prejudiced, by the matters last complained of, even though it were held that the findings and decree with respect thereto are too general, a matter on which, for the reason stated, we express no opinion. Plaintiff, however, also vigorously assails the findings and decree in favor of the intervener. As to the rights of the intervener the court found: "That the said intervener, both by its pleadings and also by stipulation made in open court, admits that the rights of the defendant are superior to the rights of the intervener in and to the waters of said 'Daniels' hollow,' and that, whenever the waters of said 'Daniels' hollow' are not more than sufficient to irrigate the portion of the lands of the defendant which she has heretofore irrigated from said hollow, then the defendant is entitled to turn all of the waters of said hollow upon her said lands for the beneficial irrigation thereof." The decree follows the finding. We remark that in view of the state of the record we entertain serious doubts respecting our rights to review the assignments of error as against the intervener. For the reason, however, that in the findings and decree all the rights of the intervener are made subject to the rights of the defendant, and in view that during the period of time from September 1st to May 1st of the following year the intervener never has used, nor can use, the waters from said spring, and for the reason that plaintiff's right to the use of the waters of said spring are necessarily limited, as herein before stated, and hence cannot be affected by said finding or decree, we express no opinion respecting our power to review the assignments against the intervener. If, as counsel contends, however, the decree in favor of the intervener in so far as it can possibly affect the plaintiff is void. because not supported by the pleadings, then again the plaintiff cannot legally be affected or prejudiced thereby. Appeal from Utah County, Fourth District For the reasons stated, and to the extent indicated, the findings, conclusions of law, and decree are modified, and the cause is remanded to the district court of Utah County, with directions to make findings, conclusions of law, and enter a decree in conformity with the directions hereinbefore stated. Each party is required to pay his, her, or its own costs, as the case may be. MCCARTY, CORFMAN, and GIDEON, JJ., concur. THURMAN, J., not participating, disqualified. CLEARY v. DANIELS et al. (Price River Irr. Co. No. 3062. Decided August 8, 1917. On petition for rehearing 1. WATERS AND WATER COURSES-DIVERSION-DAMAGES-SUFFICIENCY OF EVIDENCE. On counterclaim for damages from plaintiff's diversion of water, used by defendants to irrigate their lands, evidence held sufficient to support the findings of the jury that defendants sustained damages in the sum of $266. (Page 508.) 2. WATERS AND On Petition for Rehearing COURSES-APPROPRIATION-DIVERSION-INSTRUCTION. The suit regarding the waters of a creek, wherein defendants claimed damages by plaintiff's diversion, an instruction that defendants were entitled to use without molestation sufficient of the waters of the creek to mature whatever crops they had growing on their land watered from the creek, so if the jury found that plaintiff interfered with defendant's use of the water by diverting it, and deprived defendants of their right to use it, defendants would be entitled to whatever damages the preponderance of the evidence showed they sustained by the diversion, did not submit any true or correct rule by which the damages could have been determined. (Page 512.) Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge. Action by Annie Cleary against Amelia Daniels and Hannah Gallagher, wherein the Price River Irr. Co. intervened. Judgment for defendant and intervener. Plaintiff appeals. Cleary v. Daniels et al., 50 Utah 505 AFFIRMED in part, and REVERSED in part and new trial ordered. Thurman, Wedgwood & Irvine for appellant. Booth & Booth for respondent. M. Thomas for intervener. GIDEON, J. The complaint alleges that the plaintiff is the owner of a half section of land located in Utah County, and that such lands are barren without irrigation, but productive with irrigation; that to obtain water to irrigate said lands plaintiff made application to the state engineer to appropriate 2.3 cubic feet per second of the waters flowing in an unnamed creek near said lands; that under that application she became the owner, and is the owner, of that amount of water in said creek from April 1st to October 31st of each year; that on the 22d day of June, 1915, and prior thereto, defendants wrongfully placed a dam in said stream and diverted the waters from plaintiff's flume and ditch, and turned the same back into the natural channel of the creek, and plaintiff has, by reason thereof, sustained damages by loss of crops. Plaintiff asks for injunctive relief and for damages. Defendant's answer admits the filing of the application by the plaintiff in the state engineer's office, denies plaintiff's rights to any portion of the waters of said creek, and denies any damages to plaintiff by any act of defendants. Defendants affirmatively allege as a counterclaim against the plaintiff that they are the owners of 200 acres of land located at or near the outlet of the canyon through which said creek runs, and that the same is barren without irrigation, but will produce valuable crops with irrigation, and that they and their predecessors in interest have continuously used all of the waters of said creek to irrigate the lands now owned by the defendants for more than thirty years last past, and that the same has been used for the purpose of irrigating said lands, on which hay and other crops have been grown; Appeal from Utah County, Fourth District that the plaintiff, in the month of June, 1915, and at various other times, diverted the waters from the natural channel of said stream and turned the same upon plaintiff's lands against the rights of the defendants, and that by reason thereof defendants have suffered damages. Defendants ask for a decree that they are the owners of the right to the use of the waters of said creek for irrigation and watering of stock during the entire year, that plaintiff be enjoined from interfering with such use, and for damages. The reply admits that plaintiff diverted the waters at the point mentioned in the complaint; alleges that she had the right so to do; denies that the defendants have the right or title to the use of said waters, and denies all other allegations of defendants' answer. The Price River Irrigation Company filed a complaint in intervention in which it claimed all the waters flowing in said stream, and pleaded two decrees theretofore entered by a court of competent jurisdiction by virtue of which it claimed the right to the use of said waters. A jury was impaneled to determine the question of damages. The other issues were determined by the court. The litigation here involves the right to the use of the waters of a small creek running through and out of what is known in the testimony as Hunter's or South canyon. The lands of the defendants lie at the mouth or opening of this canyon, and the canyon extends westerly about three or four miles into the mountains and near what is known as Soldier Summit. The stream in this canyon is fed from springs near its head and along its course and by melting snows in the spring and early summer. During the melting of the snow there is much more water in the stream than at any other season of the year. The plaintiff's lands are located near this stream a mile or more above the lands of the defendants, and are so located that the waters can be diverted from the stream by means of flumes and ditches so as to be taken upon the lands of the plaintiff. The jury returned a verdict assessing the defendants' damages in the sum of $266, and the court made findings and conclusions in favor of the defendants and against the plaintiff, and awarded the defendants the |