
    No. 11,752.
    Nevius, et al. v. Smith.
    Decided June 11, 1928.
    Messrs. Hillyer & Hillyer, for plaintiffs in'error.
    Messrs. Gordon & Gordon, for defendant in error.
    
      En Banc.
    
   Mr. Chibe Justice Denison

delivered the opinion of the court.

We have given this matter careful investigation and consideration and we think the decision of the case will depend upon whether the appropriated water, if not diverted, would reach the river. That because of the condition of the pleadings and the findings of the court, we do not agree as to what the court found on this point. We therefore remand the case to the district court with directions to specifically find from the evidence already taken, whether water in question ever reached the river and if not whether it would reach the river if not diverted, but left to itself.

When this finding is made have the record remitted to this court.

Cause remanded.  