PECK v. WILSON, Sheriff. No. 2200. Decided June 14, 1911 (116 Pac. 1135). APPEAL from District Court, Second District; Hon. J. A. Howell, Judge. Action by Martin H. Peck against Barlow B. Wilson, Sheriff of Weber County. Judgment for plaintiff. Defendant apppeals. APPEAL DISMISSED AND JUDGMENT AFFIRMED. George B. Hancock and E. A. Walton for appellant. Halverson & Pratt for respondent. STRAUP, J. This case was commenced in the municipal court of Ogden City. A judgment was there rendered in favor of the plaintiff. The defendant took an appeal to the district court, where the case was tried de novo. A judgment was there rendered again in favor of the plaintiff. From that judgment the defendant has appealed to this court. A motion is made to dismiss the appeal, upon the ground that the judgment is not appealable. Upon the authority of the case of State of Utah v. Hoken Olsen, 39 Utah, 177, 115 Pac. 968, the appeal is dismissed, and the judgment of the court below affirmed. Costs to respondent. FRICK, C. J., and MCCARTY, J., concur. MUNSEE v. MCKELLAR et al. No. 2121. Decided January 4, 1911. On Application for Rehearing, June 14, 1911 (116 Pac. 1024). 1. TRIAL-FINDINGS OF TRIAL COURT-SUFFICIENCY. A finding of fact, in a suit involving the ownership and use of the waters of springs, that plaintiff has no right, title, or interest in or to the waters is a mere conclusion, and is insufficient.1 (Page 287.) 2. TRIAL-FINDINGS-UNCERTAINTY. A finding that the allegations of the complaint of plaintiff contrary to the findings are untrue is objectionable as too general and uncertain. (Page 287.) 3. APPEAL AND ERROR-HARMLESS ERROR-FINDINGS. Where issues are not expressly found, but are necessarily negatived by specific findings, or where it clearly appears from the specific findings that issues not found would necessarily be adverse to the defeated party, had findings thereon been made, a failure to find on such issues is not reversible error, provided the findings made support the judgment. (Page 288.) 4. WATERS AND WATERCOURSES-SPRINGS-ISSUES-FINDINGS. Where in a suit involving the ownership and the use of the waters of springs, plaintiff showed an appropriation of the waters in 1895, by the construction of ditches, by means of which he diverted the waters and made a beneficial use of them until interfered with by defendant, and defendant showed that in 1904 he constructed a ditch and thereby diverted and used all the waters of the springs for beneficial purposes, but did not show that the waters were then unappropriated, the findings that defendant, in 1904, constructed a ditch from his land to the springs, which were then unappropriated waters, and appropriated and diverted all the waters to his land for irrigation and domestic purposes, and that plaintiff had no right to the waters, or any part thereof, and that the allegations of his complaint contrary to the findings were untrue, were not in conflict with plaintiff's claim, especially since they did not necessarily negative a prior appropriation of the waters by plaintiff, and did not sustain judgment for defendant. (Page 288.) 1 Dillon Imp. Co. v. Cleveland, 32 Utah, 3, 88 Pac. 670; Everett v. Jones, 32 Utah, 491, 91 Pac. 360; Utah Association of Credit Men v. Home Fire Ins. Co., 36 Utah 20, 102 Pac. 631; Volker-Scowcroft Lumber Co. v. Vance, 36 Utah 348, 103 Pac. 974, 24 L. R. A. (N. S.) 321. 5. TRIAL-FINDINGS REQUISITES. The court, in a suit in equity, should make specific findings of fact which respond to and dispose of the material issues. (Page 290.) 6. APPEAL AND ERROR-APPEAL IN EQUITY SUIT-FINDINGS. Where the trial court in an equity suit failed to make specific findings which responded to and disposed of the material issues, the court on appeal could either reverse the judgment and remand the case, or determine the facts and direct the entry of judg ment accordingly. (Page 290.) ON APPLICATION FOR REHEARING. 7. APPEAL AND ERROR-APPEAL IN EQUITY SUIT-FINDINGS. Where, in a suit in equity, the specific findings did not respond to and dispose of the material issues, and the matters involved might not have been fully litigated by the parties because of erroneous rulings of the trial court, the court on appeal will not itself determine the facts and direct the entry of a proper judgment, but will reverse the judgment and remand the case, with directions to grant a new trial. (Page 291.) APPEAL from District Court, Third District; Hon. Geo. G. Armstrong, Judge. Action by Eugene Munsee against Joseph McKellar and another. Judgment for defendants. Plaintiff appeals. REVERSED AND NEW TRIAL GRANTED. Halverson & Pratt for appellant. Moyle & Van Cott for respondents. STRAUP, J. This suit involves the ownership and use of the waters of certain springs, called Munsee's Springs, situate near the desert, in Tooele County. The plaintiff is the owner of a tract of land consisting of about 120 acres; the defendants the owners of about 160 acres adjoining. The springs are about three miles from the plaintiff's land and a little farther from the defendants' land. It was alleged by the plaintiff that at the time of the filing of his complaint he was, and for more than thirteen years prior thereto he had been, the owner of the waters of the springs and of a ditch from the springs to his lands; that during all of such times, by means of the ditch, he had diverted and used the waters for irrigation and culinary purposes, and for the watering of live stock, and that the defendants asserted an unfounded claim or interest in and to the waters and the ditch. The defendants denied the allegations of the complaint, and for affirmative relief alleged that they, in 1904, for the purpose of irrigation and for domestic purposes, constructed a ditch from the springs to their lands, by means of which they diverted all the waters of the springs and used them on their lands, and ever since so continued to use them. Each prayed for a judgment quieting title. The plaintiff filed a reply, denying the affirmative allegations of the answer. The case was tried to the court. Evidence was introduced on behalf of the plaintiff tending to show that in the year 1895, he settled upon his land and built a house, a stable, and a corral. The waters of the springs, as testified to by some of the witnesses, consisted of about a one-half second-foot flow; others testified that they were sufficient to fill a good plow furrow, and in high water time ran down the wash. In 1895 the plaintiff constructed a ditch from the wash to his land, and used the water upon it for irrigation. Later he constructed a ditch from the springs to a lake and from there to his lands. -Experiencing some difficulty in having the waters reach his lands in that manner, he constructed another ditch direct from the springs to his lands, which was completed in 1899. Between 1895 and 1904, prior to the time the defendants claimed an interest in the water, the plaintiff also used the waters of the springs to irrigate some lands near the lake, about two miles from his lands, upon which he raised some potatoes, and he also irrigated seven or eight acres of the land subsequently acquired by the defendants, upon which he also raised some crops. He also cultivated and raised crops on about eight acres of the lands owned by him, which were irrigated by the waters of the springs, and also used such waters on a meadow on his lands, consisting of about thirty acres, and from which he took from twenty to thirty tons of hay annually; and he also watered his stock, consisting of sixty to two hundred head. Plaintiff and his witnesses further testified that from 1895, until interfered with by the defendants, he had diverted and used all of the waters of the springs for irrigation and for domestic purposes, and for watering live stock. Evidence was adduced on behalf of the defendants tending to show that in the fall of 1903, or spring of 1904, they entered upon their lands and built a house and a corral, and in the spring of 1904 they constructed a ditch from their lands to the wash, by means of which they diverted the waters of the springs and used them upon their lands; that in 1904 and 1905, they had cultivated and irrigated about two acres of ground, about ten acres in 1905, and twelve or fourteen acres in 1907, and that from 1904 to 1907 they had used all the waters of the springs on their lands, except when turned off and interfered with by the plaintiff. The defendants further testified that in 1904, when their ditch was constructed and the waters diverted by them, the waters of the springs were then running to waste down the wash, and that there were no indications of any ditch running from the wash or from the springs to plaintiff's lands, and that there was not anything to show that the waters of the springs had ever been used on plaintiff's lands. Other witnesses on behalf of the defendants testified that they saw no ditch running from the wash or from the springs to plaintiff's lands. It was also testified to, on behalf of the defendants, that there were a number of springs, variously estimated at from four or five to eleven, on the lands of the plaintiff, and that his meadow was watered from such springs, and not from the Munsee Springs, and that his meadow was low and wet and needed draining, and that the ground cultivated by the plaintiff on his lands consisted of only about one acre, and was watered, not from the waters of the Munsee Springs, but from a spring or springs on his own lands. The plaintiff and other witnesses testified that the ground cultivated by him on his land, and some of the meadow lands, were so situated that they could not be watered from the springs on his lands, and that the lands cultivated by |