This is a water contest between two riparian proprietors. The court below instructed the jury that if they believed from the' evidence that the defendants were riparian proprietors, and used the waters of the stream for the purpose of irrigating their lands, and used no more than was necessary for that purpose, and returned the surplus water after such use into the channel, then they should return a verdict for the defendants. This was error, for by it the jury was in effect told that the defendants were entitled to divert and use all of the water of the stream, if necessary for the irrigation of their lands, without regard to the wants or necessities of the other riparian proprietor.
Judgment and order reversed and cause remanded for a new trial.