BARTCH, C. J.
The plaintiff brought this action to determine and quiet its right to the waters of Minnie Maud creek, a stream in Carbon county, Utah, and to enjoin the defendant from interfer[226]*226ing with, or from diverting or using, or asserting any right to tbe use of, the water of the stream. The defendant, in her answer, after alleging her right to the use of a certain quantity of the water from the stream by appropriation and adverse user, prayed that she be awarded the right to use a sufficient amount to irrigate 160 acres of land and for domestic and other purposes. At the trial the court, after hearing the evidence found in favor of the defendant, awarded her a certain portion of the water of the stream, and enjoined hoth parties from interfering with the rights to the use of water as estabished by the decree.
This appeal is from the judgment and decree. The appellant contends that two of the findings of fact are not supported by the evidence, and that the decree, being based on the findings of fact, is erroneous. The objectionable findings read as follows: “The defendant has, by adverse user of the waters of the Minnie Maud creek, acquired a right to the use of a certain quantity of the waters of said Minnie Maud creek, and that such user has been for more than seven years last past; that the preponderance of the evidence shows that defendant is entitled to a certain quantity of the waters of .said Minnie Maud creek by reason of defendant’s said adverse user of said waters.” “That the quantity of water acquired by such adverse user amounts to one-half of one second foot of water until the flow of the same, at the point of diversion, by the defendant, amounts to three second feet, and after adding the one-half second foot to said flow, defendant is entitled to one-fourth of a second foot in addition to the one-half second foot aforesaid.” The decree based upon these findings^ so far as material here, provides that the defendant “shall have and he entitled to the undisputed use and enjoyment of a one-half of one second foot of water” from the stream at the point of diversion by her, for agricultural and other beneficial uses, “at all seasons of the year, and at all times, for use on her lands on said Minnie Maud creek, until the flow of the waters” of the creek “shall reach a quantity equal to three second feet, and, after adding said one-half of one second foot to such flow, the defendant shall [227]*227bave and be entitled to tbe nse and enjoyment of one-fonrth of a second foot of tbe water of Minnie Mand creek, in addition to tbe one-balf of one second foot as aforesaid at tbe point of diversion.” This decree, it seems, gives tbe defendant one-balf of a second foot during tbe time of low water and three-fourths of a second-foot during tbe high-water season when tbe flow of tbe stream amounts to three second feet; and from a careful examination of tbe evidence we are unable to say that tbe proof does not sustain tbe above findings upon which tbe decree is founded. Even if, considered in a purely technical sense, tbe evidence were conceded to be insufficient to sustain an adverse user, still tbe proof disclosed by tbe record is ample to show that tbe defendant is entitled, because of prior appropriation and use, at least to tbe amount of water awarded her. On tbe question of her diversion and use of tbe water, E. C. Lee, one who, with others, deeded bis water rights to tbe plaintiff corporation and is one of tbe principal witnesses, of tbe plaintiff, testified: “She has used the water every year since 1892 to tbe present year. She turned it out of tbe ditch, and irrigated what land is cultivated. She put a dam in tbe creek, and has done so every year since 1892. Up to tbe time of tbe commencement of this action, these dams were never taken out, that I know of. She used tbe water as she saw fit, for anything that I know of, and I only got what water she did not use.” Tbe witness made further statements as follows: “I asked tbe defendant to turn the water down in 1900. I was there once before, but I do not know when it was, and I saw her turn tbe water down. I did nothing but ask her to turn it down. She has gone along using tbe water from the first time Limew of her having water out of tbe creek until tbe present time each year. I never took out any of her dams, or turned tbe water, or attempted to. When I went up to see Mrs. Grames in 1900, I told her I was burning up down there for want of water. I told her I would like to bave her turn it down for ten days. I thought I could save my crops. She said would turn it down for me. I remember going up there and seeing about getting some water a good many -years ago. We were short [228]*228of water, but I cannot remember the conversation. Mr. Grames first commenced to irrigate in 1892. Before be commenced to irrigate there was about 120 acres irrigated. [By plaintiff’s grantors.] The lands in the canyon are sandy, and soak freely, and require a large quantity of water to irrigate them. I have been at Mrs. Grames’ place every year. I saw water running in the ditch in 1892. I did not see it go to the land. I have seen water running on the land in different years up there. The first time I saw the Grameses there they had just started digging into the bank to put up the house. That was in 1891.” The witness D. C. Johnson, testifying for the plaintiff, and referring to the husband of the defendant, said he saw him. “on the land that Mrs. Grames now occupies in 1891, either the latter part of July or the first part of August.” J. A. Hamilton, another witness for the plaintiff, testified; “I went to the Minnie Maud country in 1894. I am familiar with the land under irrigation in 1895. Two years ago I measured the land under cultivation when I went there, and found something over 300 acres. I measured the plaintiff’s land and found thirty-three acres and a fraction of land that had been plowed and irrigated. When I went there in 1894, Mr. Lee’s place and the Johnson place and Campbell place and Mrs. Grames’ place were all that were under cultivation and irrigation, that I remember of. I should judge that Mrs. Grames has increased her land undér cultivation since 1894 fifteen acres —something near that.” The defendant, in her own behalf, testified: “I reside on Minnie Maud, in Carbon county, Utah. I have lived there since 1890. Our permanent home has been there since 1890. My husband lived with me until his death, sis years ago last August. We located there the 26th day of August, 1890, and have resided there continually since. In 1891 we took out a large ditch, four and one-half feet wide on the top and two feet deep, and took the water from the creek through this ditch. The ditch was built to take all the water of the creek onto my land. The first year after taking out the ditch, we cultivated ten or twelve acres. That was in 1891. We had water on our place in [229]*229May^ 1891. I should judge we have something near forty or fifty acres, altogether, which we irrigate now. We have used the water on that place every year when there was water in the creek to put on it. No person below claiming the water has interfered with my use. The year before the incorporation I turned the water down at Mr. Tee’s request.” The witness A. J. Russell, testifying for the defendant, said: “I should judge that the Grames ditch was four wide and a foot and a half deep. It was taken out in the spring of 1891. I don’t know what time.” The witness Hall said: “Mrs. Grames went to Minnie Maud creek in the fall of 1890, and put up a rock house. In the spring of 1891 they built a ditch from the creek. I should judge it was somewhere in the neighborhood of four feet wide and two feet deep.
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BARTCH, C. J.
The plaintiff brought this action to determine and quiet its right to the waters of Minnie Maud creek, a stream in Carbon county, Utah, and to enjoin the defendant from interfer[226]*226ing with, or from diverting or using, or asserting any right to tbe use of, the water of the stream. The defendant, in her answer, after alleging her right to the use of a certain quantity of the water from the stream by appropriation and adverse user, prayed that she be awarded the right to use a sufficient amount to irrigate 160 acres of land and for domestic and other purposes. At the trial the court, after hearing the evidence found in favor of the defendant, awarded her a certain portion of the water of the stream, and enjoined hoth parties from interfering with the rights to the use of water as estabished by the decree.
This appeal is from the judgment and decree. The appellant contends that two of the findings of fact are not supported by the evidence, and that the decree, being based on the findings of fact, is erroneous. The objectionable findings read as follows: “The defendant has, by adverse user of the waters of the Minnie Maud creek, acquired a right to the use of a certain quantity of the waters of said Minnie Maud creek, and that such user has been for more than seven years last past; that the preponderance of the evidence shows that defendant is entitled to a certain quantity of the waters of .said Minnie Maud creek by reason of defendant’s said adverse user of said waters.” “That the quantity of water acquired by such adverse user amounts to one-half of one second foot of water until the flow of the same, at the point of diversion, by the defendant, amounts to three second feet, and after adding the one-half second foot to said flow, defendant is entitled to one-fourth of a second foot in addition to the one-half second foot aforesaid.” The decree based upon these findings^ so far as material here, provides that the defendant “shall have and he entitled to the undisputed use and enjoyment of a one-half of one second foot of water” from the stream at the point of diversion by her, for agricultural and other beneficial uses, “at all seasons of the year, and at all times, for use on her lands on said Minnie Maud creek, until the flow of the waters” of the creek “shall reach a quantity equal to three second feet, and, after adding said one-half of one second foot to such flow, the defendant shall [227]*227bave and be entitled to tbe nse and enjoyment of one-fonrth of a second foot of tbe water of Minnie Mand creek, in addition to tbe one-balf of one second foot as aforesaid at tbe point of diversion.” This decree, it seems, gives tbe defendant one-balf of a second foot during tbe time of low water and three-fourths of a second-foot during tbe high-water season when tbe flow of tbe stream amounts to three second feet; and from a careful examination of tbe evidence we are unable to say that tbe proof does not sustain tbe above findings upon which tbe decree is founded. Even if, considered in a purely technical sense, tbe evidence were conceded to be insufficient to sustain an adverse user, still tbe proof disclosed by tbe record is ample to show that tbe defendant is entitled, because of prior appropriation and use, at least to tbe amount of water awarded her. On tbe question of her diversion and use of tbe water, E. C. Lee, one who, with others, deeded bis water rights to tbe plaintiff corporation and is one of tbe principal witnesses, of tbe plaintiff, testified: “She has used the water every year since 1892 to tbe present year. She turned it out of tbe ditch, and irrigated what land is cultivated. She put a dam in tbe creek, and has done so every year since 1892. Up to tbe time of tbe commencement of this action, these dams were never taken out, that I know of. She used tbe water as she saw fit, for anything that I know of, and I only got what water she did not use.” Tbe witness made further statements as follows: “I asked tbe defendant to turn the water down in 1900. I was there once before, but I do not know when it was, and I saw her turn tbe water down. I did nothing but ask her to turn it down. She has gone along using tbe water from the first time Limew of her having water out of tbe creek until tbe present time each year. I never took out any of her dams, or turned tbe water, or attempted to. When I went up to see Mrs. Grames in 1900, I told her I was burning up down there for want of water. I told her I would like to bave her turn it down for ten days. I thought I could save my crops. She said would turn it down for me. I remember going up there and seeing about getting some water a good many -years ago. We were short [228]*228of water, but I cannot remember the conversation. Mr. Grames first commenced to irrigate in 1892. Before be commenced to irrigate there was about 120 acres irrigated. [By plaintiff’s grantors.] The lands in the canyon are sandy, and soak freely, and require a large quantity of water to irrigate them. I have been at Mrs. Grames’ place every year. I saw water running in the ditch in 1892. I did not see it go to the land. I have seen water running on the land in different years up there. The first time I saw the Grameses there they had just started digging into the bank to put up the house. That was in 1891.” The witness D. C. Johnson, testifying for the plaintiff, and referring to the husband of the defendant, said he saw him. “on the land that Mrs. Grames now occupies in 1891, either the latter part of July or the first part of August.” J. A. Hamilton, another witness for the plaintiff, testified; “I went to the Minnie Maud country in 1894. I am familiar with the land under irrigation in 1895. Two years ago I measured the land under cultivation when I went there, and found something over 300 acres. I measured the plaintiff’s land and found thirty-three acres and a fraction of land that had been plowed and irrigated. When I went there in 1894, Mr. Lee’s place and the Johnson place and Campbell place and Mrs. Grames’ place were all that were under cultivation and irrigation, that I remember of. I should judge that Mrs. Grames has increased her land undér cultivation since 1894 fifteen acres —something near that.” The defendant, in her own behalf, testified: “I reside on Minnie Maud, in Carbon county, Utah. I have lived there since 1890. Our permanent home has been there since 1890. My husband lived with me until his death, sis years ago last August. We located there the 26th day of August, 1890, and have resided there continually since. In 1891 we took out a large ditch, four and one-half feet wide on the top and two feet deep, and took the water from the creek through this ditch. The ditch was built to take all the water of the creek onto my land. The first year after taking out the ditch, we cultivated ten or twelve acres. That was in 1891. We had water on our place in [229]*229May^ 1891. I should judge we have something near forty or fifty acres, altogether, which we irrigate now. We have used the water on that place every year when there was water in the creek to put on it. No person below claiming the water has interfered with my use. The year before the incorporation I turned the water down at Mr. Tee’s request.” The witness A. J. Russell, testifying for the defendant, said: “I should judge that the Grames ditch was four wide and a foot and a half deep. It was taken out in the spring of 1891. I don’t know what time.” The witness Hall said: “Mrs. Grames went to Minnie Maud creek in the fall of 1890, and put up a rock house. In the spring of 1891 they built a ditch from the creek. I should judge it was somewhere in the neighborhood of four feet wide and two feet deep. In 1892 they had a nice little crop in; in my judgment, from twelve to fifteen acres; principally oats, meadow, and some potatoes.” There is other evidence of similar import in the record, but further quotation therefrom or further reference in detail thereto is not deemed necessary. It is clear that the defendant is entitled to all the water awarded her by the decree. Especially is this true in view of the fact that by express stipulation of the attorneys for the respective parties “the duty of water for the land in controversy is one cubic foot per second for sixty-five acres of land.” It is shown that she has forty to forty-five or fifty acres of land under cultivation, and has been allotted but one-half in low and three-fourths cubic foot per second in high water season. It is also shown by the testimony of the witnesses on both sides that the defendant’s appropriation of water was first made in 1891; that the respondent has used the water upon her land ever since; and that, while occasionally she turned it down for use by those below her upon the stream, at their request, her right to its use, previous to the organization of the plaintiff company and the time when this controversy arose, appears to have been admitted or acquiesced in by those who would have been most interested in contesting such right. That the water thus appropriated and used by the respondent and her husband was subject to such appropriation and [230]*230use, is shown by the appellant’s own evidence, from, which it appears that before Mr. Grames commenced to irrigate there were but about 120 acres irrigated, while in 1894, after the water in dispute had been appropriated, the appropriation having been made in 1891 and 1892, there were over 300 acres under cultivation. From this it is apparent that, even after the water of the respondent had been appropriated, there must have remained a considerable flow yet unappropriated.
Under the facts and circumstances disclosed by the evidence in the record, we are not disposed to disturb the decision of the lower court, the decree being manifestly warranted by the proof.
The judgment is affirmed, with costs.
Me GANTT, J., concurs.