Appeal from the Circuit Court of the United States for the District of Oregon.

Suit in equity by the Pacific Dive Stock Company against the Silvies River Irrigation Company and the Harney Valley Improvement Company. From the decree, complainant appeals.

The pleadings are fairly stated by counsel for appellant. The bill of complaint alleged that complainant was the owner of a. large tract of land situate in Harney valley, Harney county, Or.; that the land lies along and is riparian to the Silvies river and its branches and forks; that on said land are numerous sloughs, minor channels, and swales, which put out from the main channel of the river and its forks, and the waters of said river and its forks, and of s.aid sloughs, minor channels, and swales naturally flow upon and through said land; that the climate of said Harney valley is dry, and the soil is naturally arid, except as it is watered by or from said river; that thé land of complainant is best adapted to the growth of grass, hay, and pasture; that during the last 10 years complainant has raised, mowed, and cured a large quantity of natural grasses growing on said lands for hay, and has used the remainder of said natural grasses for pasture, for the support of large numbers of cattle; that complainant is entitled to the full, regular, and natural flow of the water of .said river at all stages of the flow of the waters therein, subject only to the vested rights of other riparian owners on said stream; that very often the flow of said waters is not sufficient in quantity for irrigation of said lands; that the flow of said waters to and upon said lands is at all times very beneficial to said lands, and adds very greatly to the productiveness and fertility thereof, and gives said lands the greatest element of their value; that, if the flow of said waters is taken away from said lands, said lands will become arid and greatly diminished in value; that the annual rainfall on said lands is small in quantity; that said lands, unless irrigated otherwise than by the natural rainfall, will not produce sufficient vegetation, and will not enable complainant to pasture its cattle thereon; that during the spring months of every year there is a large increase in the volume of water flowing down said Silvies river, caused by the melting of the snow in the watershed of said river; that the annual increased flow of water coming down said river at such times has from time immemorial caused said river in the various channels thereof to overflow and to cover with said overflow a large portion of the lands of complainant for a limited period of time each year; that said waters so overflow on account of the slight slope of the lands in said Har-ney valley; that the water causing and constituting such overflow has in each year brought large quantities of silt and material to said lands from the mountains and ravines through which said river and its tributaries flow in their course to said lands of complainant, and deposited said silt and material on complainant’s lands, and thereby fertilized and enriched said lands, and caused said lands annually to yield increased crops of grasses and feed for complainant’s stock, and has largely increased the value of said lands; that without such overflowing said lands would have produced little or no feed or crops, unless said lands were artificially irrigated; that during the lowest stages of the flow of the water of said Silvies river and its various channels the waters thereof are confined to and flow within the banks of the same; that, when the flow of the waters of said river increases in each year as aforesaid, such increased flow thereof naturally flows over and covers the meadow lands adjacent to the channels of said river; that said overflow waters, together with the waters confined within the banks of said channels of said river, flow in a definite southeasterly direction through said lands of complainant, and that, when the volume of water flowing through said channels of said river diminishes in the summer months of each year, so much of the overflow waters as have not been consumed in irrigation gradually recede to and within the banks of the various channels and waterways of said river.

The complaint further alleges that in the month of October, 1007, the defendants commenced the construction of a ditch taking out of the river, 6 feet deep, 40 feet wide on the top and 22 feet wide on the bottom, with a grade of -I feet to the mile, with the intention of diverting a large volume of water above the land of complainant; that none of the water so threatened to be diverted will ever return to the river, and all thereof will be prevented from flowing to said land, and will be wholly lost to complainant; that the capacity of said ditch is intended to be such that the same will be sufficient to divert all of the waters of said river after the spring flow has subsided; that, by reason of such diversion, complainant will be deprived of the valuable and increased crops, feed, and pasture on-said land, and said lands will be greatly deteriorated in quality and greatly depreciated in value; that such diversion at any time during any of the stages of the flow of said river will canse great and irreparable damage and injury to complainant; that all of said water is actually needed and used by complainant for the irrigation of its lands, for water for its stock, and for domestic use; that without said water said lands will not be supplied with water sufficient for the production of crops, feed, and pasture thereon, or for watering of stock, or domestic use; that, if said waters are diverted, the crops will dry up and he destroyed, and complainant will not receive the water which it is entitled to receive as a riparian owner for the irrigation of its lands and for such other purposes as a riparian owner is entitled to use the same; that it will be impossible to estimate the value of the crops, feed, and pasture of which complainant will be deprived, or the amount of the decrease in the value of said land.

The prayer was that defendants he enjoined from diverting any water from the river above the lands of complainant.

The defendants’ answer alleged that in the spring of the year the natural flow in Silvies river is much more than sufficient for the use of complainant on said lands and much greater than any use to which complainant has ever put such full spring flow of the river, and is greater than any use which complainant can put said waters to on said land; that at times the flow of water is so great as to be a detriment; that defendants have good and lawful right to divert the surplus and excess flood waters of Silvies river by reason of appropriations of such surplus flood waters; that no water to which complainant has any claim of rigid will be diverted, by respondents, but that respondents will divert only the surplus and excess flood waters, and that complainant will receive all the water which it now has received to its beneficial use on said lands, and will not in any way be injured by the ditch and diversion of flood water contemplated by respondents, deny that respondents will divert any waters to which any one has a vested right, but aver that they will divert only the excess spring flood water which goes to waste and is a detriment.

The answer further disclaims any right or color of right or intention to take any wafer whatever to which any one has any vested, right prior to the filing of the appropriation by defendants; that they only claim to appropriate so much of the water as is not already appropriated by any one, and the intention of respondents is to carry off the surplus waters to which no one has right or title, and which go to waste and form, together with other water. the Malheur marshes and lake, and that they have not intended and do not now intend to take any water which any one has put; to a beneficial use,, and disclaim any intention to invade tile legal rights of any one, but only claim and intend to use such water as no one else is putting to a beneficial use; that there is a great surplus of flood water and surplus water in Silvies river which has not been beneficially used by complainant or by any one, but whi?h goes to waste; that if upon actual trial it shall prove that respondents deprive complainant, or any oiie, of any water heretofore beneficially used by complainant or by any one. then these respondents disclaim any right to such water so put to a beneficial and prior use by complainant or any one, and agree to modify their plan, or, if necessary, discontinue it altogether, so that the acis of respondents may not conflict with the established rights of others.

The evidence taken in the present case not having been brought up, the appellees submitted a motion that it be required to be certified to this court, and also moved that the appeal be dismissed. There was. however, a stipulation entered into by the respective parties that the evidence contained in the record in the suit of Pacific Live Stock Co. v. W. D. Hanley et ai. (No. 2,036) 200 Fed. 468, just disposed of, he considered by the court on the present appeal.