Opinion of the Court-Stewart, C. J.

Findings of fact should be statements of ultimate facts in controversy, not of probative facts or mere conclusions of law. (Murphy v. Bennett, 68 Cal. 528, 9 Pac. 738; Weidenmueller v. Stearns Ranchos Co., 128 Cal. 623, 61 Pac. 374; Broadbent v. Brumback, 2 Ida. 366 (336), 16 Pac. 555.)

STEWART, C. J.-This action is brought by the Montpelier Milling Company, a corporation, for the purpose of obtaining an injunction against the city of Montpelier, a municipal corporation, restraining the municipality from diverting the waters of Montpelier creek in Bear Lake county, Idaho. The cause was tried to the court and findings of fact made and a decree entered in favor of the plaintiff. The defendant, the city of Montpelier, appeals from the judgment. The first question for consideration is the sufficiency of the complaint. In substance the complaint alleges: the corporate capacity of the plaintiff and defendant; that the plaintiff is engaged in the milling business, for the manufacture of flour, etc., near Montpelier, in this state; that the plaintiff, and its predecessors in interest, own, and have owned for more than eighteen years, a certain grist and flour mill situated on certain real property in the city of Montpelier; that plaintiff's predecessors in interest constructed a ditch and pipe-line during the year 1891, from Montpelier creek to plaintiff's said mill, of sufficient size and capacity to carry ten second-feet of water; and the appropriation of ten second-feet of water from said creek through said ditch and pipe-line during the year 1891, for the purpose of generating power to operate said mill, and that the same has been continuously used for such purpose by the plaintiff and its predecessors in interest. free from hindrance, ever since; that said amount of water is necessary to properly operate said mill, and that during a large portion of the milling season no more than ten secondfeet of water has flowed in said creek at plaintiff's point of diversion, and that during said time plaintiff and its predecessors in interest have used the entire flow of said stream for said purpose, and that the plaintiff is entitled to the entire

Opinion of the Court-Stewart, C. J.

flow of said stream when there is no more than ten secondfeet of water flowing therein at said point.

The complaint further alleges the ownership and control by the city of Montpelier of a system of waterworks since April 1, 1908, from which said city is alleged to have sold and supplied a large amount of water for domestic and commercial purposes; that on or about the 1st day of April, 1908, the defendant city, in order to supply its said system of waterworks with water, unlawfully and wrongfully, and without any right whatsoever, diverted from said Montpelier creek, at a point on said creek about two miles above plaintiff's said point of diversion, a large quantity of the waters of said creek, and that defendant is now wrongfully diverting said waters into its system, whereby and by reason thereof plaintiff is wrongfully deprived of said water necessary for power purposes for its said mill, and was unable to operate said mill for five hours every day for about fifteen days during the months of November and December, 1908, and January and February, 1909, and by reason thereof has been damaged in the sum of $500; that the defendant threatens to continue to wrongfully and unlawfully divert said waters to the plaintiff's great and irreparable injury.

To this complaint a general demurrer was filed and overruled.

The answer consists of admissions, denials and affirmative matter. The denials, it is conceded by counsel for appellant, are insufficient to present any issue, and in the affirmative matter it is alleged that at the time plaintiff, by and through its predecessors in interest, diverted the waters of Montpelier creek into its ditches and pipe-line for milling purposes, all of the water of said creek had been completely exhausted by former and prior appropriations for beneficial uses, and at the time of said attempted appropriation by plaintiff there was no water for its appropriation; that the Montpelier Irrigation Company, a corporation, owns and controls water appropriated by its predecessors in interest, sixty-four secondfeet of the waters of the flowage of Montpelier creek, all of which was appropriated and applied to a beneficial use, be

Opinion of the Court-Stewart, C. J.

tween the 1st day of January, 1864, and the 1st day of June, 1884, and the same was decreed to said Montpelier Irrigation Company by the district court of the fifth judicial district of the state of Idaho, by decree dated February 20, 1902, and now on record and on file in the office of the clerk of said court, at Paris, Idaho; that defendant is the owner of one hundred and fifty shares of stock of said Montpelier Irrigation Company, which entitles the defendant to the use of three second-feet of water, and that it now uses, and has used, less than one-fourth of a second-foot of water since diverting it from said creek, as in the complaint alleged; that defendant's right to the use of said water is superior and prior to the right of the said plaintiff.

Upon the issues thus presented the court made its findings of fact and entered a decree in favor of the plaintiff, enjoining and restraining the defendant from diverting the waters. of Montpelier creek in any manner so as to interfere with the flow of at least ten second-feet of such water, or so much of said water as may be flowing in said creek up to ten secondfeet to plaintiff's point of diversion, and for judgment for $250 damages.

It is contended upon behalf of the appellant that the complaint fails to state a cause of action, for the reason that it is alleged that the appropriation made by the respondent was for manufacturing and milling purposes, while the appropriation made by the appellant was for municipal and domestic purposes, and thus shows that the appropriation made by the appellant was superior in right to that of the plaintiff.

Referring to the complaint, it will be observed that the plaintiff claims the right to ten second-feet of water flowing in Montpelier creek for the purpose of producing and generating power to run and operate a mill, and that such diversion and appropriation was made in the year 1891, and that said water so appropriated has been continuously used ever since; that the defendant made an appropriation of the waters of said Montpelier creek in April, 1908, and diverted said water at a point above the plaintiff's point of diversion. Thus it appears that the appropriation made by the respond

Opinion of the Court-Stewart, C. J.

ent was prior in time to that of the appellant. The contention of appellant is based upon a construction of sec. 3 of art. 15 of the constitution of this state. This section reads as follows:

"The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied. Priority of appropriation shall give the better right as between those using the water; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall (subject to such limitations as may be prescribed by law), have the preference over those claiming for any other purpose; and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes. And in any organized mining district, those using the water for mining purposes or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes. But the usage by such subsequent appropriators shall be subject to such provisions of law regulating the taking of private property for public and private use, as referred to in sec. 14 of art. 1 of this constitution.”

From the language thus used in this section appellant argues that it was the intention of the framers of the constitution to make an appropriation of water for domestic uses a right superior to an appropriation made for manufacturing uses, without reference to the time or priority of such appropriations. In other words, appellant argues that the appropriation made by the respondent, being for manufacturing purposes, did not withdraw the water so appropriated from a subsequent appropriation made for domestic uses, and that the appropriation and use for manufacturing purposes conferred no right which could not be taken away and destroyed by an appropriation for domestic use.

Applying this principle to the facts alleged in the complaint, it is claimed that the appropriation made by the respondent in the year 1891 for manufacturing and milling purposes, and the continuous use of such water from that

Opinion of the Court-Stewart, C. J.

date up to 1908, conferred no right upon the respondent which could not be defeated and subsequently acquired by the appellant upon an appropriation for domestic uses.

We do not think that the language thus used in the constitution was ever intended to have this effect, for it is clearly and explicitly provided in said section that the right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied; that priority of appropriation shall give the better right as between those using the water. This clearly declares that the appropriation of water to a beneficial use is a constitutional right, and that the first in time is the first in right, without reference to the use, but recognizes the right of appropriations for domestic purposes as superior to appropriations for other purposes, when the waters of any natural stream are not sufficient for the service of all those desiring the same.

section clearly recognizes that the right to use water for a beneficial purpose is a property right, subject to such provisions of law regulating the taking of private property for public and private use as referred to in sec. 14, art. 1, of the constitution.

It clearly was the intention of the framers of the constitution to provide that water previously appropriated for manufacturing purposes may be taken and appropriated for domestic use, upon due and fair compensation therefor. It certainly could not have been the intention of the framers of the constitution to provide that water appropriated for manufacturing purposes could thereafter arbitrarily and without compensation be appropriated for domestic purposes. This would manifestly be unjust, and clearly in contravention of the provisions of this section, which declare that the right to divert and appropriate the unappropriated waters of any natural stream for beneficial use shall never be denied, and that priority of appropriation shall give the better right.

In the case of Town of Sterling v. Pawnee Extension Ditch Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A., N. S., 238, the supreme court of Colorado construed sec. 6, art. 16, of the constitution of that state, which is very similar to sec. 3, art.