I concur in the result, but do not desire to sanction the conclusions announced in the case of Benton v. Johncox, 17 Wash. 277 (49 Pac. 495), as the correct construction of water rights in the arid area of this state.

The opinion of the court was delivered by

A careful examination in detail of the record, which comprises between 500 and 600 typewritten pages, convinces us that we should not be justified in disturbing the findings of fact made by the referee, which findings were substantially adopted by the court. [Neither *76■would a particular analysis of this large volume of testimony serve any good purpose. The law governing the respective rights to the use of water by riparian owners and proprietors was, after mature investigation and deliberation, announced by this court in Benton v. Johncox, 17 Wash. 277 (49 Pac. 495, 61 Am. St. Rep. 912), and we do not wish to disturb the rule there announced, and under the law laid down in that case the judgment in this case is warranted by the findings of fact. It is, however, contended by the appellant that, under the terms of the judgment, he is deprived of the use of the water of Mill creelc for the purpose of irrigating his riparian lands. We doubt if the judgment would bear this construction, but, in order that there may be no uncertainty in this regard, the case will be remanded, with instructions to the lower court to decree to appellant the use of such proportion of the waters of Mill creek as appellant’s riparian lands, viz., the Oifner tract, bear to the whole tract, viz., the Gose homestead, which is the S. W. -J of section 24, township 7 N. of range 35 E. W. M., and that the injunction be made subject to this modification. Neither party will recover costs of this appeal.

Gordon, O. J"., and Eullerton and Anders, JX, concur.