nauts in his deed, the grantor may acquire a title subsequently, and assert it against his grantee. 3 Washb. Real Prop. (6th Ed.) p. 110, § 1933; Tied. Real Prop. p. 551, § 727, and cases there cited. The purpose of the rules referred to is not to deprive the grantor of the right to become the owner of the property which he has conveyed. Abandonment was equivalent in effect to a deed by the plaintiff surrendering the claim to the government; forfeiture was tantamount to such a deed, and to a grant from the government to Brogan conferring upon him the rights and privileges of a locator. The deed from McDermott to the plaintiff conveyed all the possessory right which MeDermott held in that part of the mineral land of the United States covered by the Northwest lode claim, and also the title which McDermott might thereafter acquire by patent issued to perfect the title obtained by location and compliance with the law; the only title outstanding was that of the government; the plaintiff either surrendered by abandonment, or lost by forfeiture, without the fault of McDermott, its defeasible title; if surrendered by abandonment, the estate of the plaintiff reverted to the government, and was merged in the paramount title; if lost by forfeiture through Brogan's location, there was a return and merger, and at the same moment of time a grant by the government to the new locator. As already observed, by abandonment an unpatented mining claim necessarily becomes part of the public domain; by forfeiture it became such for an instant only; the merger and new grant being simultaneous. The land embraced within the claim of the plaintiff was therefore part of the public mineral lands at the time Brogan located the Shamrock lode claim. It cannot reasonably be contended that, in the absence of fraud, the title acquired by McDermott from Brogan passed to the plaintiff. If A. (McDermott) conveys land to B. (plaintiff), and B. quitclaims to C. (the government), and C. conveys to D. (Brogan), and D. to A. (McDermott), certainly B. (plaintiff) will not be heard to say that when A. (McDermott) acquired title from D. (Brogan) it passed to B., or that A. (McDermott) is estopped. Brogan, having by his location acquired a title which was good as against the plaintiff, lawfully conveyed to McDermott, who acquired the title of the locator; and the fact that McDermott was at the time a stockholder and trustee or director of the plaintiff in nowise lessened his right so to purchase and hold the mining ground. The title obtained from Brogan did not inure to the benefit of the company. The evidence was sufficient to justify the findings, and the latter support the judgment. The only questions presented are those which we have discussed. The case seems to have been well and carefully tried by the learned judge of the district court. The judgment and the order overruling the motion for a new trial are affirmed. Affirmed. MILBURN, J., concurs. The CHIEF JUSTICE, being disqualified, takes no part in the foregoing decision. (25 Utah, 126) SNOW v. TARPEY. (Supreme Court of Utah. July 21, 1902.) APPEAL-EXCEPTIONS-STENOGRAPHER'S NOTES. 1. Where the transcript on appeal contains no exceptions, other than a transcript of the official stenographer's notes taken at the trial, such transcript not having been submitted to the trial court for approval, the exceptions therein stated cannot be considered by the appellate court. Appeal from district court, Salt Lake county; C. W. Morse, Judge. Action by A. E. Snow against D. P. Tarpey. From a judgment for plaintiff, defendant appeals. Affirmed. L. R. Rogers and Ogden Hiles, for appellant. J. E. Frick and G. M. Sullivan, for respondent. BOOTH, District Judge. This is an action brought by the plaintiff and respondent in the Third judicial district court for damages against the defendant and appellant for alleged breach of contract for the sale of certain lands in Box Elder county, Utah. The answer of the appellant admitted the contract and denied the damages. The cause was tried before a jury, and a verdict for $4,761.58 was rendered for the plaintiff, and judgment duly entered thereon. The defendant moved for a new trial, which motion was overruled, and he thereupon appealed to this court. The respondent challenges directly the standing of the appellant before this court, on a motion to dismiss the appeal on the following grounds, to wit: "(1) Because the transcript originally certified to this court has been altered without leave of court, without notice to plaintiff and respondent or his counsel, and without any authority therefor. (2) Because the purported transcript now on file is not the transcript as certified by the clerk of the district court of Salt Lake county to this court. (3) Because said purported transcript is not a true and correct transcript of the files and records of the district court of Salt Lake county in said cause, in that it fails to contain all the files of said district court in said cause, but contains three pages of matter foreign to the records of this case. (4) Because the exceptions embodied in said three pages of said transcript purported to have been taken at the trial by the defendant were never noted on the minutes of the court, and were never proposed, allowed, or settled as a bill of exceptions, and were never filed in this case. (5) No oral exceptions taken at the trial were ever proposed and allowed or set tled by the trial judge, and were never sought to be, and never were, made a part of the files and records of the district court, or a part of the judgment roll of said court, in this action." Said motion of respondent is supported by the certificate of the trial judge, wherein he certifies "that when the parties rested, respectively, I, as judge of the court, instructed the jury in writing; that, after such instructions were given, the parties presented their exception to the instructions to the stenographic reporter of this court, and said reporter noted down such exceptions in the record of the proceedings of the case; that neither party to this proceeding ever prepared and presented a bill of exceptions embodying the exceptions aforesaid, and no bill of exceptions was ever presented to me or allowed in this case by either party." Said motion of the resp ndent is further supported by an affidavit of the deputy clerk of said court, which affidavit, among other things, states that on the 5th day of February, 1902, she prepared and made up the judgment roll, "and certified to the said judgment roll as deputy clerk aforesaid, and the said certificate to the said judgment roll was typewritten by this affiant; that on said 5th day of February, 1902, she delivered the said judgment roll at the office of the clerk of the supreme court of the state of Utah. Affiant says that she has since examined the said judgment roll in said cause, and that said judgment roll as it now appears is not the judgment roll as was certified to by this affiant to the supreme court aforesaid; that the same has been changed by some one other than this affiant, in this, to wit: that page 52 of said judgment roll, as originally certified to, consisted of a memorandum of costs, and that page 50 embraced a subpoena; that said memorandum of costs and subpoena have been extracted from said judgment roll, and in place thereof has been injected what purport to be exceptions to certain rulings, which purported exceptions now embrace pages 50, 51, and 52." The affidavit further states that certain changes have been made in the index. The appellant presents an affidavit of L. R. Rogers, which states that the affiant is the attorney for the appellant; that, before the transcript in this case was filed in this court, on examination he discovered that a subpoena and a memorandum of costs had been improperly inserted therein, and affiant thereupon directed his clerk to detach them from the transcript and put in place thereof the exceptions actually taken at the trial to certain instructions given by the trial court to the jury, furnished by the official stenographer of the court which tried the case, and then have the district clerk change the certificate accordingly. The change was not made, and the attorney for the appellant did not know of the change not being made until served with a copy of the respondent's motion to dismiss the appeal. The affidavit of Justin R. Davis, referred to, states that pages 50, 51, and 52 of the transcript heretofore referred to were typewritten by the affiant; that the same is a true and correct transcript of his official notes, so far as relates to said exceptions. We hold that, under the facts in this case, no bill of exceptions was ever allowed, settled, or filed, and therefore there is nothing for this court to review, except the transcript as it was without the exceptions contained in pages 50, 51, and 52 thereof; and, with those pages not considered, there exists no reason to reverse the judgment of the lower court. We do not hold that a mistake in a transcript cannot be corrected, if the same shall be brought to the attention of the trial court, and by him allowed. It is not a proper practice to file as a bill of exceptions a paper that has never been submitted to the trial court for its approval, modification, or rejection. The judgment of the lower court is affirmed, with costs to the plaintiff. MINER, C. J., and BASKIN, J., concur. (25 Utah, 96) HERRIMAN IRR. CO. v. KEEL et al. (Supreme Court of Utah. July 19, 1902.) APPEAL-LAW OF THE CASE-FINDINGS ON CONFLICTING EVIDENCE-WATERS-UNDERGROUND AND PERCOLATING-DAMAGES INCIDENTAL TO ESCAPE-DIGGING TUNNEL DRYING UP SPRINGS-DAMNUM ABSQUE INJURIA-TURNING WATERS INTO NATURAL STREAM-DIVERSION-BURDEN OF PROOF. 1. Where a case is reversed for insufficiency of evidence to support a material finding, and in the second trial material evidence not offered at the first trial is introduced, the decision on the first appeal as to the matters involved in such finding is not conclusive on a second appeal. 2. The decision of an appellate court constitutes the law of the case only as to such questions as were necessarily involved in such decision, and were presented to the court and expressly or impliedly decided. 3. The only questions before an- appellate court on an appeal are those raised by assignments of error and also presented in appellant's briefs. 4. Findings based on conflicting evidence, considered and weighed by the trial court in the light of a personal examination of the subjectmatter on suit, will not be disturbed on appeal.1 5. Water standing in land underneath the surface, or passing through it by filtration, percolation, chemical attraction, or in undefined and unknown streams, belongs to the land, and the incidental drying up of springs caused by the escape of such waters into and out through a tunnel driven by one on his own land is dam-. num absque injuria.2 6. Where one who has developed water, incidentally, in digging a tunnel on his own land, turns it into a stream, he does not thereby abandon it, but may take it out again lower down the natural stream, with a proper allowance for seepage and evaporation. 2. See Appeal and Error, vol. 3, Cent. Dig. §§ 4355-4357. 1 Miller v. Livingston, 61 Pac. 569, 22 Utah, 174; Larsen v. Onesite, 59 Pac. 234, 21 Utah, 38. 2 Crescent Min. Co. v. Silver King Min. Co., 54 Pac. 244, 17 Utah, 444, 70 Am. St. Rep. 810; Irrigation Co. v. Michaelson, 60 Pac. 943, 21 Utah, 248, 51 L. R. A. 280, 81 Am. St. Rep. 687. 7. Where one turns water developed from his land into a natural stream, and takes it out lower down such stream, the burden is on him to show that he does not take out more than he is entitled to after allowing for seepage and evaporation. Appeal from district court, Salt Lake county; H. H. Rolapp, Judge. Suit by the Herriman Irrigation Company against George W. Keel and others. From a decree in favor of defendants, plaintiff appeals. Modified. King, Burton & King, for appellant. Andrew Howat, for respondents. BARTCH, J. This action was brought to restrain the defendants from continuing to divert water from Butterfield creek, the use of which the plaintiff claims by right of prior appropriation. It appears from the record that, about the year 1852, various persons settled upon lands where the village of Herriman is situated, and appropriated all the water of Butterfield creek for the purposes of irrigation and domestic use. Afterwards those entitled to the use of the water organized the plaintiff corporation, for the purpose of controlling its use and distribution according to the respective rights of the shareholders; and the corporation is the owner of the water so appropriated, and represents all the parties beneficially interested in the appropriation and use thereof. All the water running in the natural stream was so used, by those persons and their successors, from the time of the first appropriation until about the year 1894, when, about two miles above the point of diversion of the plaintiff, the defendants erected a head gate in the natural channel of the creek, and diverted about one-half of the water then flowing in the stream, and from that time until the commencement of this suit the defendants have continued to divert such portion of the stream. Prior to the diversion of any water by them from the creek, the defendant company had become the owner of a number of mining claims, and to develop these claims, and for the purpose of extracting minerals therefrom, the mining company had driven two tunnels upon its own land; the one, the Queen tunnel, extending into the mountains about 2,900 feet, and the other, or Butterfield tunnel, over 8,200 feet. In the construction of these tunnels the water in dispute was developed, turned into the creek, and, after flowing in the natural channel for a considerable distance, diverted by the defendants, at their point of diversion, by means of the head gate. The plaintiff claims, and introduced evidence tending to show, that the construction of the tunnels caused a number of springs, out of which water theretofore flowed into the creek, to dry up and cease flowing, and that, except for the tunnels, the water flowing from them would flow from the springs. The defendants introduced evidence tending to show that, in the vicinity of where the springs in question are claimed to have formerly existed, springs are still flowing; that the construction of the tunnels did not have the effect of causing any springs to cease flowing; that, if any springs ceased to flow, it was the result of other causes, such as less precipitation for several successive years, the destruction of timber and undergrowth, which formerly retarded the snow from melting and retained moisture, etc.; and that the streams of water flowing out of the tunnels came from percolation and small undefined and unknown subterranean streams. The evidence shows that water comes into the Butterfield tunnel from innumerable places beyond a point therein about 5,500 feet from the mouth thereof. There appears to be no surface indication of any channel or water course between the springs in question, and the tunnels, and the springs claimed to have been affected, are situate from nearly a mile to a mile and a half distant from the tunnels. At the trial the court entered a decree in favor of the defendants, and the plaintiff appealed. This case was before us on a former occasion, and we then reversed it, and remanded it for a new trial. 19 Utah, 453, 57 Pac. 537, 51 L. R. A. 930. At the former trial it was, the same as at this, decided in favor of the defendants, and the plaintiff then, same as now, was the appellant. On this appeal, the appellant in the first instance insists that. under the "law of the case," this court should set aside the findings and decree of the trial court, and order judgment entered as prayed for in the complaint; and that the questions now herein presented were adjudicated on the former appeal, and have become res judicata. The efficacy of the general rule here invoked is not to be doubted. The rule, however, is not entirely without limitations. It does not apply to expressions of opinions on questions the disposition of which was not necessary for the decision, or to the reasoning or illustrations in an opinion, however important in determining what was decided. Nothing in a decision which is merely obiter dictum is controlled by the rule. Nor does a decision, as to a question of fact, fall within the rule, when, upon the retrial, material evidence not offered at the first trial is introduced. So the doctrine of res judicata does not apply where a judgment is reversed and remanded for a new trial because material findings of fact are not supported by the proof, and when at the second trial additional evidence is offered and admitted. But upon all questions involved in the judgment the decision of the appellate court is conclusive. This appears to be the settled law. In Elliott, App. Proc. § 578, the author, after stating that "it is a firmly settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment," says: "It is. however, to be borne in mind that the rule does not go to the extent of foreclosing a re view of all the questions discussed, for it does not, by any means, go to that length. It is only such questions as were before the court for decision, and such as were expressly or impliedly decided, that are conclusively adjudicated. The reasoning or illustrations of the court do not constitute decisions, and hence the reasoning and the illustrations, although they may be important as aids in determining what was actually decided, do not constitute the binding adjudication." In Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. 654, 29 L. Ed. 858, one question was whether, on a former appeal, certain matters had been determined, and had become the law of the case. In an opinion written, on that appeal, by Mr. Justice Field, certain expressions were made upon certain legal questions involved in the case, but not then directly before the court for determination. The decree was reversed, and the cause remanded, with directions to take further proceedings in accordance with the opinion. 113 U. S. 618, 5 Sup. Ct. 606, 28 L. Ed. 1109. The lower court, on the retrial, it seems, considered itself bound by the expressions of opinion so inadvertently made, and disposed of the case accordingly. On the second appeal, it was urged that what was stated in the opinion of the appellate court had become the law of the case. On this question, Mr. Justice Field, who again delivered the opinion of the court. said: "We said, however, that the grant of these additional sections might be regarded as one of quantity,-an inadvertence for which the writer of that opinion, who is also the writer of this one, is alone responsible. The statement was not at all material to the decision, which was that a deduction should have been made by reason of the intersection of the two grants, so far as the prior grant was located within the extension. We recognize the rule that what was decided in a case pending before us on appeal is not open to reconsideration in the same case, on a second appeal upon similar facts. The first decision is the law of the case, and must control its disposition; but the rule does not apply to expressions of opinion on matters the disposition of which was not required for the decision." So, in Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 200, 45 Am. St. Rep. 87, it was said: "It is settled beyond controversy that a decision of this court on appeal, as to a question of fact, does not become the law of the case. But plaintiff contends that the question thus presented of the insufficiency of the evidence to support a verdict for plaintiff was a question of law, and was the very fact in judgment on that appeal. Assuming, without deciding, that the view is correct, we are nevertheless of opinion that the point now presented is not the same as that so supposed to have been decided on the former appeal, and that we are therefore now entitled to consider it without being con 69 P.-46 cluded by the former decision. We adhere to what was said on that subject in Wixson v. Devine, 80 Cal. 388, 22 Pac. 224, and will not extend the application of the doctrine of the law of the case' beyond the cases in which it has hitherto been held to apply." In Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464, 2 N. E. 194, it was said: "The principle that a decision on appeal governs the case throughout all its subsequent stages we fully recognize, but we do not understand it to be what appellee's counsel assert. In our judgment, a decision rendered on appeal does not conclusively determine merely incidental or collateral questions, but determines only such questions as are presented for decision, and are decided, as essential to a just disposition of the pending appeal." Wixson v. Devine, 80 Cal. 385, 22 Pac. 224; Clark v. Hershy, 52 Ark. 473, 12 S. W. 1077; Maddox's Ex'r v. Williams, 87 Ky. 147, 7 S. W. 907; Hughes v. Railway Co., 78 Mich. 399, 44 N. W. 396; Sprauge Inv. Co. v. Mouat Lumber & Inv. Co. (Colo. App.) 60 Pac. 179; Railway Co. v. Fox, 60 Neb. 531, 83 N. W. 744. Having thus seen that a decision of an appellate court constitutes the law of the case only as to such questions of law as were involved in the judgment, and as were presented to the court and expressly or impliedly decided, it now becomes important to determine what questions were before this court and decided on the former appeal in this case. When a suit is brought, the questions to be tried must be determined by the pleadings; and all will concede that no questions can be determined by the trial court or jury except such as have been put in issue. On appeal, all questions to be determined must be raised by assignments of error, and in the appellate court only questions so raised can be presented and determined. It will thus be observed that, before the court below can try and determine a question, the same must be put in issue by the pleadings, and that, before the appellate court can review the action of the trial court to determine a question, such question must be raised by an assignment of error. Not only must the question be so raised on appeal, but all the errors relied upon must, under the rules of this court, be plainly and distinctly set forth in the appellant's brief. It is a general rule of practice in this court that all errors assigned, but not insisted upon in the appellant's brief, will be disregarded, and considered as waived and as raising no question for determination. Only such questions, therefore, in any given case, as are raised by assignments of error, and presented in the appellant's brief, are before the supreme court for determination. On the former appeal, in the present case, it appears from an examination of the appellant's brief that all the questions pre sented and insisted upon were questions of fact, and a perusal of the opinion then delivered by Mr. Justice Baskin will show that this court simply determined that the eleventh finding of fact, and a part of the sixth, were erroneous, and were not supported by the evidence, and that plaintiff's exceptions to them on that ground were well taken. These were the only matters discussed and decided in that opinion, and thereupon the cause was reversed and "remanded for a new trial" generally. It is quite clear that only questions of fact were presented and determined on the former appeal, and, as we have seen, the determination of such questions on appeal does not become res judicata where the judgment is reversed, and the cause remanded for a new trial generally, without any specific directions, and where, as in this case, a considerable amount of material evidence not offered at the first trial is introduced upon retrial. Under these circumstances, mere expressions of opinion, as to the law, which were not required for the decision, cannot become the law of the case, and do not preclude us from now determining the law applicable to the facts. From the foregoing considerations, I am of the opinion that the decisive questions presented on this appeal have not, by virtue of our former decision, become res judicata, and we are therefore now at liberty to determine them. The appellant insists that the evidence does not warrant the ninth finding of fact, which reads: "That the driving of said tunnels, or either of them, did not dry up or diminish the flow of any spring or springs in Butterfield canyon, or in Tooele fork or Spring gulch, or any spring or springs flowing into Butterfield creek or any tributary thereof. If any such springs dried up or diminished the flow, it was from other causes than said tunnels or either of them." Upon careful examination of the testimony upon which this finding was based, I am unable to say that the proof does not support the finding. It is shown that the springs, which, it is claimed, have ceased to flow, are situate from nearly a mile to a mile and a half from the tunnels. Butterfield canyon extends in a direction substantially east and west, and the tunnels are located on the north side of the canyon, and extend into the mountain on that side. The timber and undergrowth which formerly retarded the melting of the snow and retained the moisture have been removed and destroyed. The country in that vicinity appears to be stratified, and there is evidence tending to show that the dip of the stratification is towards the north, and that consequently, on the north side of Butterfield creek and canyon, the waters sink into the soil and rocks, and are carried by the stratification along the bedding planes in the opposite direction from Butterfield creek. The witnesses Stevenson and Doremus, experts of known ability, after explaining the topography of the country in question, each testified that in his opinion, after an examination of that section of country, lasting for a period of 10 days, the springs in Spring gulch and Tooele fork, where, it is claimed, most of the springs in question are located, were not affected by either tunnel; the witness Stevenson stating that it was a physical impossibility for the springs to be dried by the tunnels. The witness Doremus also stated that he "saw nothing to indicate springs had dried." The witness Black, on this subject, testified as follows: "Lived in Butterfield canyon from '73 to '91, about a mile above mouth of Butterfield tunnel; ran sawmill for awhile; got logs from Spring gulch and Tooele fork; well acquainted with springs there; examined gulches three times since December, '95; same springs running now as during period of residence; more water now in Butterfield creek below tunnel than when I lived there." Further reference to the testimony in support of the finding is not deemed necessary, although there is much other evidence of similar import in the record. Then there is also testimony tending to show that the springs in question at one time existed, and in the opinions of several witnesses they were affected, and have ceased flowing, because of the driving of the tunnels. Such, it appears, was the opinion of Dr. Talmage, a geologist of known ability. That, on the point here under consideration, there is a substantial conflict in the evidence is manifest from an examination of it. How, then, can this court interfere with the findings of fact in. dispute? The rule has been firmly established in this jurisdiction that the appellate court will not interfere to set aside a finding of fact where there is a substantial conflict in the evidence relating thereto. This rule applies with especial force in this instance, since the judge before whom the cause was tried not only had an opportunity to see the witnesses upon the stand, and observe their demeanor, and the frankness and apparent candor with which they made their statements, but also, accompanied by the representatives of both parties, including an expert on each side, went upon the ground, and made a personal examination of the subject-matter of the suit, and such inquiries as were likely to elicit the facts. Judge Rolapp, who was the trial judge, in deciding the case, as appears, among other things, said: "After hearing the evidence and arguments, I personally visited the premises, and have since given the case more than ordinary attention. After a most careful consideration of that evidence, it is quite apparent that not even a vague inference can be formed from the testimony as to even the approximate location of any subterranean channel having definite or any banks, in the ordinary acceptation of that word, connecting the tunnels and the springs. Much less can a guess be ventured as to the direction of the flow of any underground |