Opinion of the Court-REAVIS, C. J. [26 Wash. use of the water so acquired by such appropriations. He also demands the rights of a riparian owner. The defendants answered separately, denying the material allegations of the complaint, except the admission that the Wenas river is a natural water course, and the waters, if unobstructed and undiverted at certain seasons of the year flow through the plaintiff's lands. They admit the ownership of their lands above those of plaintiff, and the diversion of water prior to the commencement of the action. Nearly all the answers plead as separate defenses the ownership of lands in the defendants, with title deraigned from the government, and the possession of such lands by each of them in varying periods, from about three to twenty years; the cultivation thereof; riparian ownership upon the stream; the use of water, and the diversion thereof by various ditches, for the irrigation of their lands, and for stock and domestic purposes; and they further plead that they have valuable improvements, and that the use of the water is indispensable to their maintenance. They aver continuous diversion of the water for a period of more than ten years preceding the commencement of the action, under a continuous claim of right, and adverse to the rights of plaintiff. It is also alleged there is no other source for irrigating their lands. The substance of the pleadings is mentioned as above, and includes all the defenses set forth in any of the answers, as well as the claims of right stated in the complaint, that are deemed material to the consideration of the cause here. There is no claim made by the defendants for affirmative relief, or the definition of their rights among themselves. The court made sixty-six findings of fact. There are no exceptions urged by the defendants here to the findings of fact. A number of exceptions Dec. 1901.] Opinion of the Court-REAVIS, C. J. were taken to the findings by the plaintiff. The statement of facts includes over 800 folios of typewritten matter, besides numerous exhibits and affidavits. In some instances counsel for the plaintiff have referred to the pages of the statement of facts. But, in the view now taken of the law applicable to the cause, only an examination of the evidence relating to the appropriations claimed by the plaintiff, and a few of the older appropriations asserted by the defendants, will be mentioned. 1. Referring to the Cleman tract, the court, in substance, found: That Cleman settled thereon in the spring of 1865, being at the time a citizen of the United States, and qualified to acquire title under the general land laws, and that he went into the possession thereof with the intention of acquiring title, and continued in possession thereafter until the 10th of March, 1871, when he sold and delivered all of his interests, improvements, and possessory rights in the premises to the plaintiff, in consideration of the sum of $400. At the time Cleman had a dwelling thereon, the premises were fenced, and there were other improvements. Eighty acres of the tract were subirrigated by the waters of the Wenas, and he raised grain and hay from such tract by subirrigation. That upon the purchase of the tract, in March, 1871, by plaintiff, he immediately entered into possession, and estab lished his residence thereon. That he was qualified to acquire the tract under the land laws of the United States, and subsequently acquired title thereto. That in April, 1871, for the purpose of irrigating such lands he constructed a ditch from the Wenas river of sufficient capacity to irrigate seventy-five acres of said tract. That in May of the same year he constructed another ditch sufficient to irrigate a large portion of such premises. That Opinion of the Court-REAVIS, C. J. [26 Wash. thereafter plaintiff continued to use such ditch and other means for diversion of the water, and to cultivate and raise agricultural crops upon said premises, until the commencement of the present suit. It is also found that all the lands on the stream above this tract were at the time of plaintiff's appropriation public lands of the United States, and that no waters had been appropriated, or in any manner used for irrigation or any other lawful purpose, out of the said stream. This finding is sufficient to support plaintiff's claim of prior appropriation of water from the Wenas river for this tract. Referring to the Perkins tract, the finding was that Perkins in 1871 settled upon said premises, qualified to acquire them under the land laws of the United States, and the middle of June is mentioned as the time when Perkins diverted water in a ditch to irrigate the premises; that Perkins continued to reside thereon and to irrigate the same and construct other ditches until June, 1873, when he sold his interest and possessory rights and improvements to Charles Longmire; that Charles Longmire immediately went into the possession of the lands, and continued the use of the water and cultivation of the land until 1878, when, having obtained title by patent thereto in January, 1878, he conveyed the tract to the plaintiff; that plaintiff has since continued the irrigation and increasing cultivation of said premises, until the commencement of this suit. In view of the exception taken to this finding by plaintiff, we have examined the evidence, and conclude that the finding should have been made more definite and certain, and that the appropriation of water to irrigate these premises should date and be the next appropriation from the waters of the Wenas river after that made upon the Cleman tract, and that it is prior to all claims of the Dec. 1901.] Opinion of the Court-REAVIS, C. J. defendants. Referring to the White tract, the finding is that Anson White, a person qualified to acquire land under the laws of the United States, settled upon the premises in the spring of 1873, and there was ten acres of the premises then irrigated from ditches theretofore taken out by the plaintiff on the Cleman tract; that White continued to irrigate and occupy the premises until 1874, when he transferred all his interest in such tract and improvements to the plaintiff; that plaintiff made a homestead entry of said premises, and obtained title thereto, and continued to irrigate and enlarge the improvements thereon; that in 1878 plaintiff had constructed a ditch. which irrigates eighty acres additional to the original land irrigated by White. The evidence with reference to the date of this appropriation has been considered, and it is concluded that the appropriation of the water for the purpose of irrigating the White tract was made subsequent to the appropriation of water made upon the premises now owned by the defendant T. D. Quinn, described as follows: The W. of the N. W. (being lots 1 and 2) and the S. E. of the N. W. and the N. E. 1 of the S. W. of section 19, township 15 N., range 18 E., Willamette Meridian, but that the appropriation of water for the purpose of irrigating the White tract is superior to all the other defendants, except the said defendant T. D. Quinn, and that the claim of right of said T. D. Quinn deraigned from the settlement and appropriation of John Perkins in the fall of 1870, as mentioned in the findings, is superior in time to the claim of appropriation established for the White tract. The evidence has also been examined in connection with the findings referring to the premises of the defendant Lloyd Purdin, and it is concluded that the claim of appropriation thereon is Opinion of the Court-REAVIS, C. J. [26 Wash. inferior to the claim of plaintiff for the Cleman, Perkins, and White tracts. It is deemed unnecessary to further inquire into the claims stated by any of the other defend ants. The superior court did not find the quantity of water flowing in the Wenas river at any time. It decreed that after the 20th day of June in each year the plaintiff was entitled to have the exclusive use of the waters of the stream for the succeeding three and one-half days; that the defendants should then have the use of the water for the three and one-half days succeeding; that thereafter plaintiff should have the exclusive use of the water for the four succeeding days; that the defendants should then have the use of the water for the three succeeding days, and plaintiff should have the exclusive use of the water for five days then succeeding; and the defendants should have the exclusive use of the water the succeeding two days; and thus to alternate in the use of said water between plaintiff and defendants from said time during the dry season of each year; and that the riparian owners mentioned in the findings of fact were entitled to use the waters of the stream at all times for stock and domestic purposes; that each of the parties to the suit should pay his own costs; and that plaintiff was not entitled to damages. Plaintiff excepts to the decree. 3. If the claim of prior appropriations and beneficial use of sufficient water from the Wenas river for the purpose of irrigating the respective parcels of land owned by him be established, then the plaintiff's right to the use of the water is superior to all other claims, whether founded upon appropriation or riparian ownership. The lands in the Wenas valley are generally arid, and require artificial irrigation to successfully produce ordinary agricultural |