the decision: Harrington v. Chambers, 3 Utah, 94; Newton v. Brown, 2 Id. 126; Firman v. Bateman, Id. 248; Walker v. Popper, Id. 281; Dewey v. Snider, Id. 344; Lubeck v. Bullock, 24 Cal. 338; Rice v. Cunningham, 29 Id. 492; Wilkinson v. Parrott, 32 Id. 102; McNeil v. Shirley, 33 Id. 202.

The appellant claims exclusive ownership of the ditch in question, and exclusive use and right to use the same. The respondents deny the claims of appellant, and assert in themselves a right to the use of the water and of the ditch so far as they have appropriated the same in excess of the amount, or outside of the time, used by appellant or its grantors when respondents settled on their lands.

The court below made ten findings of fact. To six of these the appellant files his exceptions, namely, to numbers 1, 2, 4, 5, 9, and 10. The exceptions are generally not made to the whole of any one of these findings, but to some specific part or parts thereof.

The objectionable part of the first finding is the declaration "that the said ditch was built for the purpose of irrigating the Lehi big field, and for the common accommodation of the citizens who had settled, or should thereafter settle, at Lehi, or in the vicinity, or along the path or course of said ditch." While perhaps no witness testified directly that the ditch was built with such avowed object, yet facts were proven from which the court could justly draw that conclusion. Evidence is not always the testimony of a witness, but is sometimes the effect of testimony. A witness may assert or deny an alleged fact, and yet detail circumstances which will show the very contrary.

The ditch in question, as first made and as afterwards enlarged and changed, was for certain purposes. What these are is to to be learned from the declarations, acts, and general course and conduct of the builders.

The primary object of the ditch, no doubt, was to carry water to the lands of the thirty-one or thirty-two original settlers situate in the Lehi big field, but it as plainly appears from the evidence that this purpose was afterwards modified, expanded, and added to. The ditch was allowed to supply water to lands in the big field other than those owned by the thirty-one or thirty-two first settlers, but belonging to parties settling there subsequently to them; and it was made also to furnish water to lands and settlers outside of the big field and outside of the Lehi settlement. Along the Matthews ditch alone, which receives its waters from the Lehi ditch, there are lands thus watered, which belong to some twenty-five persons who are, in the same manner as settlers inside the Lehi settlement, allowed the benefits and use of the ditch. Those parties are now members of the corporation and their interests are represented by the appellant.

The first witness for appellant testified that the business of the corporation has been to distribute the waters "to the inhabitants and those that we acknowledge to have rights." This indicates that appellant does not confine the use of the ditch to the primary object.

There is evidence going to show that the new settlers inside the Lehi settlement, upon their arrival, were allowed to have the use of the

water and an interest in the ditch without question. They simply united with the other settlers in working upon and enlarging the ditch. Such parties are now represented by the appellant-they are included in the company. No deeds seem to have passed from the original thirty-one or thirty-two settlers to those later settlers. They were admitted by tacit consent, no deeds were necessary. These later settlers helped to make the ditch as it is now found.

There is evidence to show that in all things regarding the ditch and the water, the Lehi people were accustomed to act together, as a community and not as separate individuals. That they generally acted or were represented by their bishop or by public meetings, by committees, water boards, watermasters, etc. They sent a committee to arrange with the Alpine people for a right of way for a new Alpine ditch to constitute a part of the main ditch; that said arrangement was made and the action of the committee was approved in public meeting by the Lehi people; that Bishop Evans, as spokesman and representative of the Lehi people, gave express permission to Stephen Moyle and John Poole to use the water from the ditch at particular times; that John Poole was admitted into the company, although he afterwards withdrew; that the settlers on the bench generally, including the respondents, were invited to join the company. At first, the settlement was small, and the ditch was accordingly small. Subsequently the settlement grew, the numbers increased, and the amount of land subject to irrigation increased, and, of course, the flow of water was increased to meet the increasing demands. In 1877 the number of settlers had increased to over two hundred, and the appellant is now representing over two hundred, who reside, inside and outside, but mostly inside, the Lehi settlement.

The respondents all live outside, on lands lying between Lehi and the mouth of the American-Fork canyon, and receive water upon their lands by side-ditches from this Lehi ditch, which extends from the mouth of the canyon to the Lehi big field, a distance of over three miles. The respondents seem to have followed the example of other settlers who had arrived before them, and took up lands and appropriated water and worked on the ditch in the same manner. There is no evidence that any had been excluded, nor was there any objection by the settlement, as a whole, to their using the water and the ditch, the priority of right in the prior settlers being always recognized. These, and similar matters, show clearly to our minds that the purpose of the ditch did not remain stationary, but was expanded, changed, and modified, so as to suit the changing condition of affairs, and that there was never any purpose to exclude new settlers from the benefits of the ditch and water, but that the general design-and the whole history of the ditch and settlers shows it-was that all settlers, so long as there was surplus water, were to be admitted to the benefits of the ditch, by their joining in with prior settlers in enlarging the ditch and the flow of water and in doing the annual work necessary to keep the ditch in repair.

The second finding of fact is objected to because it states that, until 1881 the citizens of Lehi used the ditch for irrigating purposes for late water only—that is, after about July 1 and before October 1 of each year. No stress is laid upon the latter date, because, perhaps, as stated by Stephen Moyle, that even in September the water was so low as to be sufficient only for culinary purposes. Respecting the first date, namely, about July 1, Stephen Moyle states that, "we always agreed about early water, that is, up to the middle of July; after that they objected to us taking it. They did not object to our taking early water." He afterwards, when recalled as a witness, said, "I have reference to early water, which I consider lasts until the latter part of June. Never was any dispute as to my right to use the ditch." W. H. Winn, the first witness for the appellant, testified that he used the AmericanFork water "for late crops," and he seems, from his language, not to have used it prior to July until 1882, when he thinks he used it in June. Israel Evans, witness for the appellant, says that they "had commenced as early as May," but that "the usual habit has been to commence using American-Fork water along in June." John Hagan, a witness for the respondents, states that he heard Israel Evans, one of the Lehi parties, testify on a trial of another case that the Lehi people never needed, the water of the ditch before the fifteenth or twentieth of July. Ephraim Nash, a witness for respondents, states that he did nct use the water "after Lehi actually needed it, after the first of July." George Magas, a witness for respondents, says that he divided the water for the Alpine ditch with the Lehi watermaster "after first of July."

Meyers also states that he always had early water, and that they never tried to take it away. Israel Evans, a witness for the appellant, when recalled for the respondents, says that it was generally known in Lehi after the spring of 1876 that the respondents used early water-that it was talked of in public meetings-but no objections were made. Hiram Heely, a witness for respondents, testified that they-the "bench" people-did not claim any amount of water after the first of July. Milton Goodrich, a witness for respondents, states that there was generally water running in the side-ditch from which he took water, up to the first of July, and that after that date he understood the Lehi people wanted it, and that up to that date no objection was ever made. These samples of the testimony show that the court below had evidence upon which to base this finding that "about the first of July" the appellant and its predecessors began to use the water from this ditch. The judgment in the case of Ellington etc. v. Poole et al., introduced in evidence, bears out the same idea; and the same fact crops out in other places throughout the evidence.

The other branch of this second finding is also objected to, which reads as follows: "That after the original building of said ditch the waters thereof were granted by the custom of the settlers and original appropriators to all new settlers at Lehi or in the vicinity, or along the line of said ditch, up to the time of the commencement of this ac

No. 116-2

tion." The word "custom" was perhaps not a happy one in this connection, as it is sometimes used in the sense of giving title, but we do not think such to be the purport of the word as here used. It is true that it says the "waters thereof were granted by custom of the settlers" etc. But if its meaning was to give title it would be a conclusion of law and not a finding of fact-it would amount to declaring it a usage which had acquired the force of law. Such evidently was not the sense of the word here, but it was intended as a finding of fact that a habit had grown up that all persons making settlements on lands that could be irrigated by the waters of this ditch were allowed to use it, and thus any new settlers would not be compelled to get an express grant in his favor, but could assume that, although this habit would not give him title, get it could be shown as evidence of tacit consent of the settlers to the use of the ditch and water by the new settlers. All of the parties, both inside and outside, of the Lehi settlement, represented by the appellant, except the original thirty-one or thirty-two, had acquired the right to use the water and ditch by said tacit consent, followed up by joining in with the older settlers in working upon, enlarging, and clearing the ditch. Other parts of the evidence support the finding in the sense of its being a fact found and not a conclusion of law.

The appellant excepts to the fourth finding of fact, because of the statement therein that the use of the water from the Lehi ditch by John Poole and other respondents was without objection on the part of the appellant or its grantors for early water, and because of the statement that Poole's right to some interest in the ditch was recognized by putting his name in the articles of incorporation.

As to the former part of this exception-the part respecting objecjection on the part of the appellant-there is evidence, both for and against the existence of said objection, and it is not our province, on this finding or any other one, to decide whether the evidence is the stronger on the one side than on the other. We are simply to find whether there is a substantial conflict in the evidence, and if there is, we can do but one thing, uphold the finding; otherwise, not. John Poole, in his examination as a witness, states that some of the work he did on the Lehi ditch was at the request of the Lehi watermaster and, of course, with his knowledge. That William Bone, the Lehi watermaster, brought him a written notice that he was not to interfere with the Alpine ditch (a side-ditch), but he received no such notice as to the Lehi ditch; that Bone saw him at work on different years; that he (Poole) suggested to Bone that he (Poole) take the portion of the ditch running through his own land and keep it in repair for his share of work on the ditch; that Bone said that that would be more than Poole's share would come to, but that it was all right; that he (Poole) worked under the direction of Matthews, subwatermaster; that Matthews notified him to come to work; that he received written authority, purporting to come from the Lehi water board, to act as watermaster, and that he worked with Matthews; that the greater part of the work

he did was in the presence of the Lehi people; that he is one of those who built about six rods of new ditch after the washout at the head of the ditch in 1881; that the Lehi people have accepted and used this new part of the ditch, knowing that he and other "bench" men built it, and that the Lehi watermaster, Hampstead, said he was glad that they built it, as he could not get the Lehi men to do it; that he is the Poole whose name appears in the articles of incorporation of appellant, and that his signature is affixed to the articles; that he signed the articles with the understanding that his rights would be respected, but when he learned that he was to take a secondary place, he refused to belong to the company; that all the "benchers" were invited into the corporation.

David Evans was formerly bishop at Lehi, and represented the people there, and he says that he gave Poole, Stephen Moyle, and others permission to take water from the ditch when Lehi people did not need it. Israel Evans, a Lehi man, says that the taking of the water by the respondents was generally known at Lehi, and he is positive that it was so known after the spring of 1876; and although the matter was on different occasions referred to in public meetings of the Lehi people, there was no objection made to their using early water. The objections now and then made by individual citizens of Lehi to certain individuals amongst the respondents taking water from the ditch, could inure to the benefit of no one not represented by such objecting party; nor could such an objection amount to an objection to all respondents, or to any not thus objected to. Unless all, either by themselves or by some one representing them, objected to an individual respondent's use of the water or ditch, the whole cannot claim the benefit of said objection to an individual respondent. And when any such objection is made by, or on behalf of, the whole number and against individual respondents, it can only avail against such respondents as were objected to. If a case of objection could be made out in favor of some of the grantors of appellant, and against some of the respondents, it would be no reason for granting an injunction in favor of all grantors of appellant, nor against all respondents. Nor can the fact that all of the grantors are united in a corporation change the requirement, but it remains as if no corporation existed.

The finding as to Poole being recognized to have some right or interest, by the fact that his name was inserted in the articles of incorporation, is possibly more a conclusion of law than a finding of fact. As there is no evidence that any one not having a water-right or right in the ditch were admitted as members of the company, we are inclined to think that as a fact the parties forming the company intended to recognize Poole as a proper party to belong to the corporation. Had they not so intended they would not have had any reason for admitting him into the company as one of the incorporators.

The appellant excepts to the fifth finding of fact because it states that the capacity of the ditch had been doubled since the settlement