Points Decided. laid down in the decision of the Verheyen case are applicable to the facts and law covering this case. Therefore, upon the decision of that case, the judgment in this case is reversed and the cause remanded for a new trial in accordance with the views expressed in the Verheyen Costs awarded to the appellants. case. Budge and Morgan, JJ., concur. Petition for rehearing denied. (March 3, 1915.) WASHINGTON STATE SUGAR COMPANY, Appellant, v. JACOB GOODRICH et al., Respondents. [147 Pac. 1073.] WATER RIGHT PERMITS WATER RIGHT CLAIMS - POWERS OF STATE ENGINEER-FORFEITURE OF RIGHT-ACTUAL APPROPRIATION BY USECOMPLIANCE WITH STATUTE VESTED RIGHTS ACTION TO QUIET - TITLE NECESSARY PARTIES CHANGE IN POINT OF DIVERSION 1. Where a permit to appropriate water for a beneficial use is granted by the state engineer, a total failure to commence the work within the time provided in the permit, or to complete one-fifth of the work within the time limited in the permit, cannot be cured by extending the time within which to make proof of beneficial use of the water so attempted to be appropriated. 2. A water right claim, as filed with the state engineer, is merely a declaration of intention to create a water right. Only by a compliance with the conditions of the permit does the water right claim finally become a water right. 3. Where one obtains a permit for the appropriation of water from the state engineer, a failure to put the water to a beneficial use or to comply with the conditions of the permit is an abandonment of the use. 4. One may obtain a prior right to the use of the water of a stream where he actually diverts and applies the same to a beneficial Points Decided. use, although he may never have applied to the state engineer for a permit to do so. (Nielson v. Parker, 19 Ida. 727, 115 Pac. 488, cited and followed.) 5. The granting by the state engineer of a permit for the right to use the waters of a stream, in and of itself, secures to the applicant no right to the use of such water, unless there be a substantial compliance with every provision of the statute affecting the issuance of such permit and a fulfillment of the conditions of the permit; a compliance with the conditions and limitations prescribed in the permit initiates a right to the use of the water in the applicant, and said right then becomes a vested one and dates back to the issuance of said permit. 6. A right to the use of water obtained by actual diversion and application to a beneficial use is a vested right, and cannot be defeated by the subsequent issuance by the state engineer of a permit to appropriate such water, granted to another party than the prior appropriator. 7. Where suit is brought by an aggrieved party to review the decision of the state engineer in lieu of an appeal from the proceedings had before said engineer, the action is in the nature of a suit to quiet title, and must be prosecuted and conducted in the same manner as an action to quiet title to real estate, and all parties whose claims are adverse to the plaintiffs, whether they appear before the state engineer or not, are indispensable parties and must be made defendants in the action. 8. Where an application to appropriate water has been made under sec. 3253, Rev. Codes, as amended by Sess. Laws 1913, p. 136, and a permit granted, and the applicant thereafter desires to change the point of diversion, he must substantially comply with the provisions of said sec. 3264, Rev. Codes. 9. The state engineer has no authority to make any change in the point of diversion specified in his permit to appropriate that would in any way interfere with the rights of prior appropriators. 10. In an action to quiet title, plaintiff will not be permitted to rely upon the weakness of defendant's title in order to establish a better title in himself, but if he is entitled to recover at all, it must be upon the strength of his own title. 11. The test of an appropriator's right to water for irrigation is the amount of water actually used for the beneficial purpose claimed. 12. Where one appropriates water for the operation of a sawmill and thereafter appropriations are made from the same stream by several parties for irrigation purposes, the first appropriator cannot transfer his appropriation to another to be used for irrigation Argument for Appellant. purposes and thereby defeat the rights of subsequent appropriators for purposes of irrigation. 13. The duty of water depends upon the character and condition of soil, and in determining such duty reference should always be made to lands that have been properly prepared and reduced to a reasonably good condition for irrigation. 14. Held, that certain findings of the court were sustained by the evidence. 15. An appropriator of water, after conducting the same to the point of intended use, has a reasonable time in which to apply such water to the use intended, but where the question of proof of such use arises, such appropriator cannot be permitted to anticipate what he might do in the future, or to make additional proof of further application to a beneficial use at a future time. 16. Held, that the decree of the lower court must be modified in regard to the amounts of water decreed certain appropriators. 17. In an action to quiet title to water appropriated from a public stream, where the issue joined is one of priority, the court should find the actual appropriation made by each appropriator, the date upon which the appropriation was made and the quantity of water appropriated to a beneficial use by each. APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. R. N. Dunn, Judge. Action to quiet title to certain water rights in Lewellyn creek. Decree of the lower court modified. Allen & Allen and Chas. L. Heitman, for Appellant. The appropriator is not even entitled to the quantity actu ally diverted and taken into possession, if he uses only a portion of it; his right is limited to the amount so actually used. (Wiel on Waters, sec. 168; Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752; Trimble v. Hellar, 23 Cal. App. 436, 138 Pac. 376.) An appropriator of water for irrigation purposes has no more than a reasonable time in which to apply water to his land, after conducting it to the point of intended use. (Bennet v. Nourse, 22 Ida. 249, 125 Pac. 1038; Kirk v. Bartholomew, 3 Ida. 367, 29 Pac. 40; Joyce v. Rubin, 23 Ida. 296, Argument for Appellant. 130 Pac. 793; Snow v. Abalos (N. M.), 140 Pac. 1044; Trimble v. Hellar, supra.) It is well settled that one cannot appropriate merely water enough to irrigate a garden patch and then claim water enough to irrigate a farm. (Wiel on Water Rights, 2d ed., sec. 170; San Luis Water Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075; Conroy v. Huffine, 48 Mont. 437, 138 Pac. 1094.) The test being the amount of water actually used by him for a beneficial purpose. (Hufford v. Dye, 162 Cal. 147, 121 Pac. 400; Trimble v. Hellar, supra; Hewitt v. Storey, 64 Fed. 510, 12 C. C. A. 250, 30 L. R. A. 265.) If respondents attempt to base their claims upon the appropriation and actual application of water to beneficial uses on the part of Hall, Goodrich and Brown, then the amount of water to which respondents are entitled is the amount which they were using at the date of their last act of appropriation and use, at the time when appellant's rights became vested. (Morris v. Bean, 146 Fed. 423; Pyke v. Burnside, 8 Ida. 487, 69 Pac. 477.) The largest duty and the greatest use must be had from every inch of water in the interest of agriculture and the building of homes. (Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752; Niday v. Barker, 16 Ida. 73, 101 Pac. 254.) The question to be determined in such cases is the amount actually necessary for the useful or beneficial purpose to which the water is to be applied. (Farmers' etc. Ditch Co. v. Riverside Irr. Co., 16 Ida. 525, 102 Pac. 481.) And reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation. (Kirk v. Bartholomew, 3 Ida. 367, 29 Pac. 40; Geertson v. Barrack, 3 Ida. 344, 29 Pac. 42.) "Water is too precious in this arid climate to permit its being unnecessarily wasted." (Roeder v. Stein, 23 Nev. 92, 42 Pac. 867; Burkhart v. Meiberg, 37 Colo. 187, 119 Am. St. 279, 86 Pac. 98, 6 L. R. A., N. S., 1104; Wiel on Water Rights 2d ed., pp. 265, 266.) The place of use can be changed provided no injury be done to others. (Bennett v. Nourse, supra.) Argument for Respondents. After ten years from the diversion, it will be presumed that the appropriator has cleared all the land he intended to irrigate. (Senior v. Anderson, 115 Cal. 496, 47 Pac. 454.) A cessation of the use by the appropriator works a forfeiture of his right, where there is a failure to make any beneficial use of the water for a period of more than five years, and, in such case, a subsequent appropriator for a beneficial use acquires a right to the water. (Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) Under the pleadings the court should have determined the date of each appropriation through which the several parties claim their rights, the amount of water appropriated and applied by each party for useful or beneficial purposes, and ordered judgment to be entered accordingly. (Geertson v. Barrack, 3 Ida. 347, 29 Pac. 42; Kirk v. Bartholomew, 3 Ida. 367, 29 Pac. 40; Brown v. Macey, 13 Ida. 451, 90 Pac. 339; Lee v. Hanford, 21 Ida. 327, 121 Pac. 558; Hufford v. Dye, 162 Cal. 147, 121 Pac. 400.) McBee and Beggs had acquired vested rights, and at the time they acquired these rights, there was no statute imposing a penalty of forfeiture, or otherwise, for a failure to commence the work within the time prescribed in the permits, and no subsequent statute imposing such a penalty could interfere with these vested rights, even if made retrospective. (Nielson v. Parker, 19 Ida. 724, 115 Pac. 488; Gard v. Thomp son, 21 Ida. 485, 123 Pac. 497; Richmond Min. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L. ed. 273.) Black & Wernette, for Respondents. Plaintiff must rely upon its own title in its action to quiet title and not upon the weakness of respondent's title. (Winter v. McMillan, 87 Cal. 256, 22 Am. St. 243, 25 Pac. 407; Robin son v. Muir, 151 Cal. 118, 90 Pac. 521.) The junior appropriator has a vested right in the continuance of the conditions that existed on the stream at and subsequent to the time he made his appropriation, unless the |