Grant

This is an action brought to determine that plaintiffs are entitled to have one hundred inches of water flow to the head of their ditch in Sandy gulch, and to have it determined that they are entitled to divert that quantity of water for the purposes stated in the complaint. Defendants deny that plaintiffs are entitled to the relief sought, and base their denial upon the ground that defendants are the owners of the first right to the waters of Sandy gulch, and this because their grantors first appropriated the waters, and secondly, that, assuming plaintiffs to have acquired the first right by prior appropriation, still they have lost that right, and the defendants have secured the same by adverse user.

A jury was impaneled to advise the court as to the facts, and one hundred and thirty-three special issues were submitted to them for their consideration. The *166 court adopted the findings of the jury upon these special issues as its findings of fact, and rendered judgment thereon. Appellants made a motion for a new trial, which was denied, and thereupon took the present appeal to this court from the order denying such motion. It is not insisted by appellants that the judgment is…