¶2on rehearing :
¶3In affirming the judgment of the district court in this case-we held that the failure of the appellant to connect himself in interest with those who first appropriated the water of the creek; remitted him to the appropriation made by himself in 1876 as the inception of his right.
¶4To escape this position, and for the purpose of showing that he had acquired by mesne conveyances the rights of the early appropriators, a diminution of the record was suggested for the purpose of bringing up the documentary evidence and the special verdict.
¶5No documentary evidence has been presented, but the special verdict has been certified to us.
¶6The respondent moves that it be stricken from the files for several reasons; among others, that it shows the judgment ought not to be disturbed, irrespective of the question of priority of appropriation.
¶7The defense to this action was based upon a right in the defendant to a portion of the waters in the creek.
¶8The first special issue presented to the jury was: “Did the plaintiffs grantors ever appropriate all of the waters of Indian creek, in Esmeralda county, Nevada?” To which the jury replied: “ No.”
¶9The judgment of the district court awarded six inches of the waters to the respondent.
¶10The statement does not contain any testimony touching the-portions of the stream to which the parties were respectively entitled. We cannot, therefore, say that respondent is not entitled to the amount of water awarded him by the judgment.
¶11But it is claimed in behalf of appellant that the special issue is unsupported by the evidence, and that the uncontradicted evidence shows that appellant and his grantors, appropriated all of the waters of the creek.
¶12One of the witnesses testified that in the year 1869 all of the waters of the creek were used in irrigating appellant’s, lands. The others testified to the use of “ all the waters of the creek that flowed down to the point where the water was diverted to plaintiffs land from Indian creek.”
¶13*138The point at which respondent diverted the water is. ten miles- further up tire stream than the point at which appellant, diverted it;, so that appellant’s, use of all the waters- that reached his irrigation ditch is- not inconsistent with respondent’s. use of some of the waters of the creek, nor with the finding of the- jury that neither respondent nor his- grantors appropriated all of the waters of the creek.
¶14The exceptional use of all the waters- in the- year 1869 is insufficient to establish a right thereto against respondent.
¶15Further, during, the years 1864, 1865, 1866, 1870, 1873, 1874 and 1875, some of the waters of the creek were used upon the land of respondent. He has not connected himself in interest with this use. But the fact that the waters were used, although by others, sustains the finding that neither appellant nor his predecessors in interest used all of the waters.
¶16The motion must be granted and the judgment affirmed.
¶17It is so ordered.