This is an action brought to determine the right of appellant to the use of two hundred inches of the waters of Geertson creek, situated in Lemhi county. The complaint alleges that the plaintiff is the owner and in the possession of over three hundred acres of land situated in said Lemhi county, and, for the purpose of irrigating said land, the plaintiff, during the spring of 1868, and while he was in the possession of sаid land,' appropriated two hundred inches of the water of said Geertsоn creek; that said appropriation was the first made of the waters of said creek; that at frequent times during the three years prior to the commencement of this suit the defendants had, without plaintiff’s consent, diverted the waters frоm said creek to such an extent as to wholly deprive plaintiff of the water so appropriated by him — and
The first specification of error is, in substance, that the findings of fact do not conform to the issues made by the pleadings. Uрon an inspection of the findings of fact, we observe that they contain many findings upon issues not made by the pleadings, and that they do not find on all of the material issues made by the pleadings.
The second error assigned is “that the judgment herеin entered is against law, for the reason that said judgment does not decree or adjudge any priority of rights to the waters in controversy.” The pleadings put in issuе the rights of the parties to the use of the waters of said creek, acсording to the priority of appropriation; and the court should have determined the rights of the parties upon that issue, and entered judgment accоrdingly. Findings of fact and conclusions of law similar to those entered in the casе at bar were commented