The opinion
*455 MR. Justice Eakin
delivered the following concurring opinion:
Since filing the motion for rehearing we have reviewed the issues and evidence relating to the appropriation of water by Small. Small claims 800 inches of water through three ditches on the west side of Silver Creek. Ditch marked No. 1 on a map not before us, is what is known as the ditch from Bridge Creek, and No. 2 and No. 3 are taken from the Island Branch near the center of the northeast 14 of section 15. He says ditch No. 1, with a capacity of 200 inches, was constructed in 1881 to take water from Bridge Creek to his desert land claim in sections 9 and 10 (560 acres). He is very indefinite as to the details relative to the construction and use of the ditch, its fall, the particular ground covered by it, and the crops raised. He testifies that ditches No. 2 and No. 3, with 300 inches and 250 inches capacity, respectively, were constructed in 1882, No. 2 being also for the purpose of reclaiming the desert land, but he is equally silent as to details of these two ditches, and his evidence simply amounts to a general statement that, in 1881 and 1882, he diverted through these ditches 750 inches of water. He admits that a large tract of this land was not fenced until 1885. In his answer and in his evidence, he claims to be the owner of 1960 acres of land, all of which was irrigated from this creek, claiming 800 inches of water therefor, and that all has been irrigated since 1882, and that one-half to three-quarters inch of water per acre was sufficient for that purpose. It appears from the evidence and a plat submitted with this motion that he owns only 1400 acres, of which not more than 820 acres are under the three ditches above mentioned. Five hundred and sixty acres of the 820 comprises the desert land claim, for the location of which he did not make application until 1884, and which was not fenced until about 1885. Hence, at the times he states he was claiming 800 inches of water, he *456 only had a legitimate claim to 260 acres under these ditches, which tends strongly to weaken his evidence as to the time and amount of the- appropriation.
S. A. D. Porter testifies, that the first water taken by Small to the desert land claim was in 1886. Jesse and James Porter, in 1886, at Small’s request, and jointly with him, measured the quantity of water flowing in ditches No. 2 and No. 3, and the amount did not exceed 50 to 75 inches in both, and the ditches were about half full; Small at that time contending that was all the water he was taking or claimed. - He evidently constructed these ditches for the purpose of reclaiming the desert land, though he says he had other land to irrigate. He does not mention what land, or state that he took the water upon any particular land. It also appears that part of this land was swamp land in 1882, and it is not reasonable to suppose that it required irrigation until reclaimed. We think the determination in the original opinion of his interest is fair and just. I have here treated Small’s rights exclusively with reference to his title by prior appropriation. He also relies in his answer upon title by adverse possession, but there is no evidence indicating that his use of the water interfered with the other users prior to 1895, and, therefore, such use is not adverse under the rule in North Powder Co. v. Coughanour, 34 Or. 9, 22 ( 54 Pac. 223 ), Carson v. Hayes, 39 Or. 97, 106 ( 65 Pac. 814 ), Beers v. Sharpe, 44 Or. 286 , 394 ( 75 Pac. 717 ). The use of the water of a stream for irrigation cannot become adverse to another claimant of it, unless such use infringes upon the right of the other and curtails his use.
Small, therefore, has acquired no title by adverse possession. The motion should be denied.
Rehearing Denied.