present time by means of the appropriation of water from other sources, and a large increased area of irrigation above the dam and ditches of the defendant companies, at, near, and adjacent to, the town of Fairview, which said increased flow is used by all the persons appropriating water from the stream above the plaintiff's dams and ditches; but I am unable to determine from the evidence, what proportion thereof is, or has been, appropriated by either of the defendant companies.

12th. That all of the waters of said river flowing therein above the Rock Dam, are, during each irrigating season, appropriated and used by the defendant corporations, and number of other persons, not parties to this suit, some prior in time and right, and others subsequent in time and right to the plaintiff corporation. That neither of the defendant corporations have, during the years 1893, 1894, or 1895, acting in concert or otherwise, diverted from the said Sanpitch River, any of the waters thereof, to which the plaintiff was entitled, or to its damage or injury; that plaintiff's stockholders have lost no crops and have suffered no injury by reason of the use of the waters of said river by the defendant corporations.

Upon such findings, so made, a decree was entered in favor of the defendants.

The plaintiff pleads and alleges the insufficiency of the evidence to justify the findings.

After stating the facts, MINER, J., delivered the opinion of the court:

The relief prayed in the complaint was for an injunction to prevent the defendants from obstructing the flow of water of Sanpitch River to plaintiff's dam and ditches. It was not an action to quiet title. Plaintiff claimed the water flowing south of the Rock Dam to his ditch. The

S. E. Field and Canal Dam is about two miles up the river and east of the Rock Dam. Defendant's main ditch is taken out just above the latter dam, and runs in a westerly course down the river, and waters a large quantity of land. Between these two dams are five ditches owned by other persons, not parties to this action, which carried water from the river during the period mentioned in the complaint. It also appears that the defendants maintain an enlarged ditch intersecting the river below the S. E. Field and Canal Dam through which water is taken, and some of the water which formerly ran through their other ditches was transferred into this enlarged ditch, and is used by the defendants.

It does not appear that the plaintiff made any motion to amend his complaint, as to parties, either at the close of his case or that of the defendants. The case was submitted to the court upon the pleadings and the testimony, and the injunction was thereafter denied.

The testimony tends to show that the people of Moroni appropriated all the waters of the river flowing down to the S. E. Field and Canal Dam in 1860, and that the respondents have succeeded to such appropriation, for the use and benefit of the people; that the appellant's predecessors appropriated only the overflow and seepage waters which came into the river bed below the Rock Dam; that the first appropriation and use of these waters was insignificant and for a limited number of acres, but that in 1874 and 1877 the more extended use of the present time was first made; that the natural volume of the stream has not become larger, but that the enlarged use of the waters during the early or high water season, has resulted in storing the water for a time in the soil, and as a consequence, by seepage back into the river bed, resulted in an increased flow during the dry or low water season, and that

this is also true of the river below the Rock Dam; that this seepage water has not been restrained or diverted by respondents, and that all the waters flowing in the river above the Rock Dam, are used and appropriated by respondents; and by others, not parties, whose rights are both prior and subsequent in time to appellant's; that below the dam, others, not parties, are using the waters.

It also appears that Rock Dam was not controlled by the respondents, but by other people, not parties to the action. In the years 1893, 1894, and 1895, during which period plaintiff claims an interference with his water, several persons, other than the respondents, diverted water from above the Rock Dam, through ditches over which the respondents had no control. Some of these ditches diverted water appropriated by the owners before and some after appellant's appropriation of water by seepage and overflow below the Rock Dam. These appropriators of water between the S. E. Field and Canal Dams claimed under an increased supply through seepage and percola. tion, and the dams have been kept as tight as circumstances would permit during the ordinary low water season, thereby discharging water at each dam.

It does not appear that any one of the defendants, or other persons, not parties here, deprived the plaintiff of the water to which he is entitled. It is true that in ordinary cases, any one of many joint tort feasors may be made liable for the whole damage proved.

If the above rule is applicable in an equity case like this, anyone who has diverted some water might be held liable in damages to one who owned the whole of the water. But the appellant does not own all of the water. What he does own mostly arises from seepage, percolation, and surplus water below the Rock Dam. The wrongful taking of the water is charged against the de

fendants, but other parties, not made defendants, also took water. It does not sufficiently appear how much was taken by each. The water claimed may be that which after being used above continued to seep or percolate back into the bed of the river, either above or below the Rock Dam. Such water may belong to those who appropriated water in the stream above the Rock Dam prior to the appropriation of the appellant.

In such a case as this when several parties are sued, in an equity proceeding, and it appears that other persons than the defendants, who have not been made parties to the action have, during the same period, diverted water from the same stream to such an extent that it can not be sufficiently shown that but for the acts of the parties not sued no injury would have resulted to the plaintiff, an injunction will not be granted in an action brought solely for that purpose. In such cases it must appear that the acts of those sued caused the injury, and that if such acts are continued damages will follow.

In Hillman v. Nevington, 57 Cal., 56, it was held:

"It is not at all improbable that no one of the defendants deprives the plaintiff of the amount to which he is entitled. If not, upon what ground could he maintain an action against any one of them? If he were entitled to all the water of the creek, then every person who diverted any of it would be liable to him in an action. But he is only entitled to a certain specific amount of it, and if it is only by the joint action of the defendants that he is deprived of that amount, it seems to us that the wrong is committed by them jointly, because no one of them alone is guilty of any wrong. Each of them diverts some of the water. And the aggregate reduces the volume below the amount to which the plaintiff is entitled, although the amount diverted by any one would not. It

is quite evident, therefore, that without unity or concert of action, no wrong could be committed; and we think that in such a case, all who act must be held to act jointly."

A court of equity could not be expected to enjoin an appropriator of water farthest up the stream without satisfactory proof that the water so claimed to be diverted would have, had it been allowed to pass down the stream, reached plaintiff's ditch. While one or all who take water might be sued, the parties who are sued should not be enjoined until it appears that their acts caused the injury complained of.

Notwithstanding the able argument and brief of counsel for the appellant, we are compelled to hold that although the testimony was conflicting, there was sufficient to sustain the findings of the court. Klopenstine v. Hays, 20 Utah, 45; 57 Pac., 712.

We have examined the other questions presented in the record, but find no reversible error in the rulings complained of.

The judgment of the district court is affirmed, with costs, but without prejudice on the part of appellant to commence and prosecute another action.

BARTCH, C. J., and BASKIN, J., concur.