Stickney v. Hanrahan

ON REHEARING.

Per CURIAM.

The appellant has filed a petition for rehearing, in which it is urged that the original opinion is inconsistent in some particulars. For instance, it is urged that the defendants Kinney and Richardson were, in the findings and decree of the lower court, given water rights dating from 1880, when in their respective pleadings they only claimed from the year 1887. Upon an inspection of the pleadings in this ease, we find that this contention' is correct. There was no complaint made at the hearing, orally, or in the printed briefs, that the findings as to the water rights of said defendants Kinney and Richardson were contrary to the pleadings; .hence our attention was not called specifically to that fact. And at this time we would not molest the former decision, were it not for the fact that the modification of the findings and decree ordered as to the defendant Hoalst, changing the priority of his right, make his subsequent in time to the defendants Kinney and Richardson, and thus work a hardship on him, by applying one rule to him, and refusing to apply it to the defendants Kinney and Richardson. .Both of said defendants Kinney and Richardson allege their appropriations to have been made in July, 1887. Hence, under the rule applied to defendant Hoalst, the findings and decree of the lower court must be modified so as to date their appropriations and rights thereunder from July 31, 1887, and it is so ordered.

' Appellant also complains that the place of measurement of the waters allotted to the respective parties has been designated as-'the point of diversion of such waters from the channel of the stream from which' the same is taken. We are unable to recede from the position taken in the original decision in relation to this question. The waters of all streams belong to the public. Eights to the use thereof for beneficial purposes may be, under the constitution and laws of this state, acquired and maintained, but the public is i. terested in the water and in its beneficial use. It is against the spirit and policy of our constitution and laws, as well as contrary to public policy, to permit the wasting of our waters, which are so badly needed for the development and prosperity of the state, and every act on the part of any individual claimant that tends to waste water is to be discouraged rather than encouraged. The necessity of measuring to each claimant, at the point of diversion from the natural stream, the waters appropriated and used by him, is apparent. A rehearing is denied.