MR. COMMISSIONER POORMAN
prepared the opinion for the court.
This is an appeal from a judgment and an order overruling plaintiff’s motion for a new trial. The complaint alleges that [201]*201the plaintiff is the prior appropriator, and has the prior right to the nse of two hundred inches of the waters of Corbley creek, Gallatin county; that the defendant interfered with this right. Plaintiff asked judgment that he be decreed to be the owner of the right to the prior use of two hundred inches of the waters of Corbley creek, and that the defendant be restrained from interfering with this right. The answer of defendant denies that the plaintiff’s prior appropriation consists of more than one hundred inches of the waters of said creek, and alleges an appropriation by the defendant; denies' also that the defendant had interfered with the plaintiff’s rights.
It appears from the facts of the case that the predecessors in interest of the plaintiff in 1866 appropriated certain waters of Corbley creek for the purpose of irrigating certain lands; that the plaintiff afterward succeeded to the rights of the original appropriators, both in the water and in the land; that this water so appropriated has been used on this land continuously since that time; that in 1871 the defendant appropriated certain waters from this same creek for the purpose of irrigating lands then held by him; that the defendant has since occupied said lands and used said water for that purpose; that neither party filed nor recorded any notice of his appropriation until 1885, when, by agreement, they filed one notice, which is in part as follows: “Be it known that A. L. Corbley and Theodore Norman * * * do hereby publish and declare, as a legal notice to all the world: I. That we have a legal right to the use, possession and control of, and claim four hundred (400) inches of the waters of Corbley Creek in said County and Territory, for irrigating and other purposes. II. [Describes the land on which the water is to be used.] TTT. That we have taken said water out of, and diverted it from said Corbley Creek by means of two ditches, which said ditches are 72 inches by 48 ditch No. 1, 120 inches by 48 ditch No. 2 inches in size, and carries or conducts 200 each- inches of water from said Creek; said Ditch No. 1 taps and diverts the water from said stream at a point upon its South bank 125 [202]*202feet Northwest from a large boulder marked XX aud lying at, ■or near the mouth of Corbley Canon — said ditch No. 2 taps and diverts the water from said stream at a point upon its North bank 100 feet Northwest of a large boulder marked X being 278 paces above the mouth of said Corbley canon, thence running or to run, to and upon said described land. * * * IV. That we appropriated and took said water on the - day of June A. D. 1866 as to ditch No. 1 and ditch No. 2 was appropriated the 15th day of June, 1874, by means of said ■ditches. V. That the name of the appropriator of said water as to ditch No. 1 was Wm. H. Arnold and as to ditch No. 2 A. L. Corbley.” It is claimed by the defendant that the date ■“1874” is error, and should read “1871.” Which date is correct is immaterial to the questions presented on this appeal. The court found to the effect that the plaintiff and. defend ant were tenants in common of the waters of Corbley creek, each to the extent of one-half thereof, and that each of the parties is entitled to the use of one-half the waters of Corbley creek; that the defendant, by the use of one-half the waters of the ■creek, had not interfered with plaintiff’s rights; that the plaintiff was not entitled to maintain this action.
Several questions of law are presented which are conclusive •of the case, and will be treated under appropriate headings.
1. The plaintiff filed a motion for judgment on the pleadings, which motion was overruled. The denials contained in the answer required proof on the part of the plaintiff as to some of the material allegations of his complaint, and the motion was properly overruled.
2. Respondent claims that by continual user of one-half of the waters of Corbley creek since 1874 he has acquired a prescriptive right to continue the use thereof. Neither party could acquire any title to the corpus of this water, but only to the use thereof. (Civil Code, sec. 1880; Middle Creek Ditch Co. v. Henry et al., 15 Mont. 558, 39 Pac. 1054.) So long as the plaintiff had all the water his necessity required, he could not complain, nor raise any question as to the right [203]*203of the defendant to nse all that remained. “In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by the party against whom the right is claimed.” (Chessman v. Hale, 31 Mont. -, 79 Pac. 254; Church v. Stillwell, 12 Colo. App. 43, 54 Pac. 395.) There is no evidence in this record that plaintiff did not have all the water required for his use from the date of its appropriation to the time this dispute arose, and the claim of a prescriptive right cannot be maintained.
3. To sustain the findings of the court it is necessary that there should have been either an abandonment of plaintiff’s prior appropriation or a conveyance of an interest therein. “Abandonment is the giving up of a thing absolutely without reference to any particular person or purpose.” (1 Cyc. 4.)' Neither party could abandon to the other, either with or without a consideration, for that would amount to a sale or gift. Abandonment is a matter of intention. (Middle Creek Ditch Co. v. Henry et al., 15 Mont. 558, 39 Pac. 1054; Wood v. Lowney et al., 20 Mont. 273, 50 Pac. 794.)
To constitute an abandonment here, it would be necessary that there be an absolute surrender of the rights acquired by the appropriations of 1866 and 1871 or 1874, and the initiation of a new right subsequent' to the abandonment. This new right is claimed under the notice of 1885. This notice itself does not contain any evidence of any intention to abandon, but adheres to .the original appropriations, and both plaintiff and defendant deny that there was any intention to abandon. There is nothing in this record that sustains any plea of abandonment.
4. To constitute a tenancy in common there must be a right to the unity of possession (17 Am. & Eng. Ency. of Law, 2d ed., 651, and cases), and if this right is destroyed the tenancy no longer exists. With respect to a water right this unity must extend to the right of user, for the parties can have no title to the water itself. The plaintiff’s right was initiated [204]*204in 1866, and bis ditcb tapped tbe creek on tbe south bank, and extended southwest to tbe lands irrigated. Tbe defendant’s right was initiated in 1871 or 1874, and bis ditcb tapped tbe creek on tbe north bank, and extended northwest to tbe lands irrigated. Neither piece of land could.be irrigated from tbe other ditcb. Tbe rights acquired by virtue of these former appropriations were vested and complete prior to tbe filing of this notice in 1885. That notice was not an appropriation, but a declaration relating to former appropriations. Prior to March 12, 1885, no notice of location or record of appropriation was required. Tbe very terms of tbe Act itself protected prior appropriations. (Comp. St. 1887, sec. 1258, div. 5; Salazar v. Smart et al., 12 Mont. 395, 30 Pac. 676.) Tbe recording of that declaration only bad tbe effect of giving notice to tbe world that these parties claimed certain appropriations. (Murray v. Tingley et al., 20 Mont.
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MR. COMMISSIONER POORMAN
prepared the opinion for the court.
This is an appeal from a judgment and an order overruling plaintiff’s motion for a new trial. The complaint alleges that [201]*201the plaintiff is the prior appropriator, and has the prior right to the nse of two hundred inches of the waters of Corbley creek, Gallatin county; that the defendant interfered with this right. Plaintiff asked judgment that he be decreed to be the owner of the right to the prior use of two hundred inches of the waters of Corbley creek, and that the defendant be restrained from interfering with this right. The answer of defendant denies that the plaintiff’s prior appropriation consists of more than one hundred inches of the waters of said creek, and alleges an appropriation by the defendant; denies' also that the defendant had interfered with the plaintiff’s rights.
It appears from the facts of the case that the predecessors in interest of the plaintiff in 1866 appropriated certain waters of Corbley creek for the purpose of irrigating certain lands; that the plaintiff afterward succeeded to the rights of the original appropriators, both in the water and in the land; that this water so appropriated has been used on this land continuously since that time; that in 1871 the defendant appropriated certain waters from this same creek for the purpose of irrigating lands then held by him; that the defendant has since occupied said lands and used said water for that purpose; that neither party filed nor recorded any notice of his appropriation until 1885, when, by agreement, they filed one notice, which is in part as follows: “Be it known that A. L. Corbley and Theodore Norman * * * do hereby publish and declare, as a legal notice to all the world: I. That we have a legal right to the use, possession and control of, and claim four hundred (400) inches of the waters of Corbley Creek in said County and Territory, for irrigating and other purposes. II. [Describes the land on which the water is to be used.] TTT. That we have taken said water out of, and diverted it from said Corbley Creek by means of two ditches, which said ditches are 72 inches by 48 ditch No. 1, 120 inches by 48 ditch No. 2 inches in size, and carries or conducts 200 each- inches of water from said Creek; said Ditch No. 1 taps and diverts the water from said stream at a point upon its South bank 125 [202]*202feet Northwest from a large boulder marked XX aud lying at, ■or near the mouth of Corbley Canon — said ditch No. 2 taps and diverts the water from said stream at a point upon its North bank 100 feet Northwest of a large boulder marked X being 278 paces above the mouth of said Corbley canon, thence running or to run, to and upon said described land. * * * IV. That we appropriated and took said water on the - day of June A. D. 1866 as to ditch No. 1 and ditch No. 2 was appropriated the 15th day of June, 1874, by means of said ■ditches. V. That the name of the appropriator of said water as to ditch No. 1 was Wm. H. Arnold and as to ditch No. 2 A. L. Corbley.” It is claimed by the defendant that the date ■“1874” is error, and should read “1871.” Which date is correct is immaterial to the questions presented on this appeal. The court found to the effect that the plaintiff and. defend ant were tenants in common of the waters of Corbley creek, each to the extent of one-half thereof, and that each of the parties is entitled to the use of one-half the waters of Corbley creek; that the defendant, by the use of one-half the waters of the ■creek, had not interfered with plaintiff’s rights; that the plaintiff was not entitled to maintain this action.
Several questions of law are presented which are conclusive •of the case, and will be treated under appropriate headings.
1. The plaintiff filed a motion for judgment on the pleadings, which motion was overruled. The denials contained in the answer required proof on the part of the plaintiff as to some of the material allegations of his complaint, and the motion was properly overruled.
2. Respondent claims that by continual user of one-half of the waters of Corbley creek since 1874 he has acquired a prescriptive right to continue the use thereof. Neither party could acquire any title to the corpus of this water, but only to the use thereof. (Civil Code, sec. 1880; Middle Creek Ditch Co. v. Henry et al., 15 Mont. 558, 39 Pac. 1054.) So long as the plaintiff had all the water his necessity required, he could not complain, nor raise any question as to the right [203]*203of the defendant to nse all that remained. “In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by the party against whom the right is claimed.” (Chessman v. Hale, 31 Mont. -, 79 Pac. 254; Church v. Stillwell, 12 Colo. App. 43, 54 Pac. 395.) There is no evidence in this record that plaintiff did not have all the water required for his use from the date of its appropriation to the time this dispute arose, and the claim of a prescriptive right cannot be maintained.
3. To sustain the findings of the court it is necessary that there should have been either an abandonment of plaintiff’s prior appropriation or a conveyance of an interest therein. “Abandonment is the giving up of a thing absolutely without reference to any particular person or purpose.” (1 Cyc. 4.)' Neither party could abandon to the other, either with or without a consideration, for that would amount to a sale or gift. Abandonment is a matter of intention. (Middle Creek Ditch Co. v. Henry et al., 15 Mont. 558, 39 Pac. 1054; Wood v. Lowney et al., 20 Mont. 273, 50 Pac. 794.)
To constitute an abandonment here, it would be necessary that there be an absolute surrender of the rights acquired by the appropriations of 1866 and 1871 or 1874, and the initiation of a new right subsequent' to the abandonment. This new right is claimed under the notice of 1885. This notice itself does not contain any evidence of any intention to abandon, but adheres to .the original appropriations, and both plaintiff and defendant deny that there was any intention to abandon. There is nothing in this record that sustains any plea of abandonment.
4. To constitute a tenancy in common there must be a right to the unity of possession (17 Am. & Eng. Ency. of Law, 2d ed., 651, and cases), and if this right is destroyed the tenancy no longer exists. With respect to a water right this unity must extend to the right of user, for the parties can have no title to the water itself. The plaintiff’s right was initiated [204]*204in 1866, and bis ditcb tapped tbe creek on tbe south bank, and extended southwest to tbe lands irrigated. Tbe defendant’s right was initiated in 1871 or 1874, and bis ditcb tapped tbe creek on tbe north bank, and extended northwest to tbe lands irrigated. Neither piece of land could.be irrigated from tbe other ditcb. Tbe rights acquired by virtue of these former appropriations were vested and complete prior to tbe filing of this notice in 1885. That notice was not an appropriation, but a declaration relating to former appropriations. Prior to March 12, 1885, no notice of location or record of appropriation was required. Tbe very terms of tbe Act itself protected prior appropriations. (Comp. St. 1887, sec. 1258, div. 5; Salazar v. Smart et al., 12 Mont. 395, 30 Pac. 676.) Tbe recording of that declaration only bad tbe effect of giving notice to tbe world that these parties claimed certain appropriations. (Murray v. Tingley et al., 20 Mont. 260, 50 Pac. 723.) Tbe appropriation claimed by plaintiff was complete in 1866. Tbe evidence is not specific as to tbe exact number of inches appropriated. Arnold, tbe original appropriator of tbe Norman water right, testified that be constructed that ditcb in 1866, and that “it carried all tbe water there was in tbe creek at that time,” and tbe defendant testified that “four hundred inches is tbe average flow of this stream, though it varies at times from one hundred inches to six hundred inches.”
In tbe notice of water right filed in 1885 each party concedes that tbe other’s ditcb carries two hundred inches, and claims an appropriation of two hundred inches of water carried by each ditcb, and they relate this back to tbe date of tbe respective appropriations. This is a tacit admission that each of these appropriations was two hundred inches of tbe waters of Corbley creek; but tbe Norman appropriation was prior in time to tbe Corbley appropriation. When, then, did Corbley acquire any interest in this prior appropriation? There was neither abandonment nor waiver by plaintiff of this prior right. Tbe notice of 1885 does not purport to be and is not a conveyance, and there is no evidence of any conveyance, either written or [205]*205oral, if an oral conveyance could be made. There is evidence that in 1874 the parties, by oral agreement, and during that season only, used the water alternately; but this was not a conveyance. The defendant also testified that during one season in the early ’80’s there was a scarcity of water, and he and Mr. Norman used the water half and half; but this was not a conveyance, nor is it evidence that one-half the water was not sufficient for plaintiff’s use. It appears from this record that there was not any unity of possession in the ditches, land, date of appropriation, use of the water, or the right to its use, and there is no tenancy in common. (See Crowder v. McDonnell et al., 21 Mont. 367, 54 Pac. 43.)
It appears from the evidence that the plaintiff has a prior right to the use of one hundred and twenty-five inches of the waters of Limestone creek, but the defendant cannot, as of right, compel the plaintiff to exhaust his rights in Limestone creek before he can resort to the right of his use to the waters of Corbley creek. This would interfere with the rights of junior appropriators, if there are any, to the waters of Limestone creek, who are not parties to this suit. The plaintiff, it is true, would not be permitted by a court of equity to permit the water of Limestone creek to run to waste, and at the same time use the full amount claimed by him of the waters of Corbley creek, to the detriment of a junior appropriator (section 4605, Civil Code) ; but this fact would not affect the abstract right of plaintiff, nor destroy the rights acquired by his prior appropriation.
The court, having found that the plaintiff and defendant were tenants in common, did not fix the date of the respective appropriations, but, inasmuch as this theory cannot be sustained, upon the retrial of the case it will be the duty of the court to fix the dates of these respective appropriations by the plaintiff and defendant, and to determine the amount of plaintiff’s appropriation. (McDonald v. Lannen et al., 19 Mont. 78, 47 Pac. 648.)
Rehearing denied April 11, 1905.
The appellant also complains that he was not permitted to cross-examine the defendant more fully regarding this notice of appropriation filed in 1885. Prom the offer made it appears that the object of this evidence was to show that there was a difference, between the testimony of the witness and the contents of the notice of 1885. The evidence for that particular purpose was not admissible, for both the notice and the testimony were before the court, and the court could determine what difference, if any, existed.
We think this judgment and order should be reversed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause remanded.
Reversed and remanded.
Mr. Justice Holloway, being disqualified takes no part in this decision.