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OGIJ5G This disposes of two questions presented in the oase before us. Had there remained water in the stream after such diversion and use by Guiraud. plaintiff in error would have had the undoubted right to appropriate the same. But since Guira.ud diverted the usual flow of water to the full extent thereof, plaintiff in error oould acquire no absolute right to any part of suoh usual or ordinary flow, when required by defendants in error; he might divert and use the same at such times as Guiraud and those who held under him were not in need thereof; and when there was an excess over the ordinary flow he might legally appropriate water to the extent of such exoess; but when there was not enough for both, the diversion of plaintiff in error must give way to the prior right of the defendants in error to the extent of Gultaud's original appropriations. '\Ie concede that Guira.ud oould not appropriate more water than was neoessary to irrigate his land; that he could not divert the same for the purpose of. irrigating lands whioh he did not oul ti vate or own, or hold by possessory right or title, to the exolusion of a subsequent bona fide appropria- tor. .And we also admit the proposition that the removal of water for drainage simply, without applying the same to any benefioial use, is not suoh an appro- priation thereof as gives a prior right thereto. But in view of our oonolusions of faot above stated. we do not think these prinoiples applioable to the oase. There is some testimony oonoerning a drainage ditoh on the "hCllOO ranoh" of Guiraud, but his diversions of water above mentioned are in no way dependent upon cr. connected with this ditch. And the water diverted was inlmildiately applied to the oultivation of lands then in his possession or under his control. though several years elapsed thereafter before he obtained the title thereto. We do not nuee with oounsel for plaintiff' in error in their position, as we understand it, that the appropriation of water by Guiraud in 1862 was not valid or permanent beoause he construoted no ditohes. Some of the wi tnesses testify that he did construot ditohes, but it unneoessary for us to weigh the testimony and determine the preponderanoe thereof upon this question. If a dam or oontrive.noe of any kind will suffice to turn water from the stream and moisten the lands sought to be cultivated, it is suffioient, though no ditch is needed or constructed. Or if the land be rendered productive by the natural overflow of the water thereon, without the aid of rmy applirmces whatever, the oultivation of such land by means of the water so naturally moistening the seme ill a suffioient appropriation of' such water, or so much thereof as is rea- sonably neoessary for such use. The true test of appropriation of water is the successful application thereof to the beneficial use designed; rmd the method of diverting or oarrying the seme, or making such application, is illl!ll!l.terial. Inasmuch as the decree does not fully aocord with the views herein expressed, it becomes necessary to modify the same. The oause will 00 remanded to the dis- trict court. with directions to enter a decree finding that plaintiff below has a prior right to the water of Trout creek over defendant to the extent of the prior appropriations thereof by Guiraud, and commanding defendant, the said William A. Thomas, to desist and refrain 'from diverting the water or rmy part thereof from said stream or in any manner interfering with the same to the detriment or injury of plaintiffs in their neoessary use thereof. to the extent of such prior appropr iations; defendrmt, the said Thomas, to pay ell costs exoept those connected with the proceedings in error. As to the latter costs, judgment will be rendered in this court against each party for the undivided one-half thereof. . Decree Modified. -e-