
    (March 29, 1907.)
    JAMES H. VAN CAMP et al., Respondents, v. DANIEL BREYER, Appellant, and WILLIAM J. TRELOAR, Intervener.
    [89 Pac. 754.]
    APPEAL from the District Court of the Sixth Judicial District for the County of Custer.
    Motion for a new trial heard before the Hon. George H. Stewart, Judge of the Third Judicial District.
    Action to determine the rights and priorities of the respective parties to the waters of Warm Springs creek, Custer county. Judgment and decree determining the respective rights, and plaintiffs moved for a new trial. Motion granted and the defendant appealed.
    
      Order affirmed.
    
    L. H. Johnson and Perky & Blaine, for Appellant.
    N. H. Clark, for Respondents.
    Counsel cite no authorities on points decided not cited in their briefs in Van Gamp v. Emery.
    
   AILSHIE, C. J.

This action was commenced in the year 1900, and is a companion case to that of Van Camp et al. v. Emery, ante, p. 202, 89 Pac. 752, just decided. It involves the appropriation, diversion and use of the waters of Warm Springs creek in Custer county of this state. The case was originally commenced by Yan Camp and Rogers against Breyer, and upon the order of the court that all interested parties be brought in, Treloar filed his complaint in intervention, and the case proceeded to trial and judgment upon the issues made by the plaintiffs, defendant and intervener. The plaintiffs moved for a new trial and the motion was passed upon by Hon. Geo. H. Stewart, judge of the third judicial district, at the same time that he considered the case of Van Camp et al. v. Emery, and a new trial was granted in this case for the same reasons given for granting a new' trial in the other case.

This case should have been properly consolidated with the other case on the trial in the lower court, as both cases involve the appropriation and use of the waters of the same stream, and the same parties are interested with the exception of Breyer, who was the defendant in this case, and was not made a party to the other case.

For the reasons given in the case of Van Camp et al. v. Emery, and upon the authority of that case, the order granting a new trial will be affirmed.

This ease, we think, should properly be consolidated with the other case upon retrial, as one trial will dispose of all the issues made in both cases, and the final decree will determine-the rights and priorities of all the parties in and to the waters of Warm Springs creek.

The order granting a new trial is affirmed, and the case is remanded, with directions to consolidate the two cases and proceed with the trial therein as speedily as the business of the court and the interests of the parties will permit. Costs awarded in favor of the respondents.

Sullivan, J., concurs.  