McQUADE, Chief Justice.
This is a water rights case which also involves issues of civil procedure. Plaintiff-respondent is an Idaho corporation which farms approximately 555 acres in Twin Falls County, 395 of which are irrigated. Of the 351 inches claimed for this purpose, 250 miner's inches of water are obtained from a stream known as the "Mendini Tunnel" or "J-3 Coulee." In 1968, respondent brought an action to quiet its alleged title to 230 miner's inches of water from the stream, and to enjoin other users from diverting more than their alleged shares. Subsequently, it moved for an injunction temporarily restraining appellant from diverting more than 10 inches from the stream. Respondent conceded those 10 inches to appellant by virtue of an agreement between the parties' early predecessors. However, appellant counterclaimed for 50 miner's inches by prior appropriation, or by prescriptive right deriving from continuous diversion of that amount by his immediate predecessors for more than five years.
Appellant was temporarily enjoined from diverting more than 10 inches from the stream. At subsequent hearings, held to show cause why a permanent injunction should not issue and to determine the equities of the parties, appellant adduced testimony that his predecessors had diverted up to 50 inches since 1936. Respondent's evidence rebutted that claim and showed that each year, up to the year immediately preceding the first hearing, it had physically interfered with delivery of more than 10 inches to the Shaub farm when the water was needed at the Glenn Dale Ranches. Respondent further claimed that 10 inches from the stream, combined with 60 inches which appellant drew from the Twin Falls Canal Company system, were more than adequate for the 54 irrigated acres on his 80 acre farm. When the hearings terminated, the court permanently enjoined appellant from diverting more than 10 inches.
Appellant assigns error to admission of evidence at the hearings going beyond respondent's alleged irreparable damage. While I.R.C.P. 65(b) requires a hearing within ten days following issue of a temporary injunction, to ascertain irreparable injury, the rule does not appear to compel the court to limit the scope of the hearing if both sides are prepared at that time to litigate the principal issues. To the contrary, I.R.C.P. 42(a) encourages trial courts to consolidate proceedings involving common questions of law or fact, and to issue such other orders as may tend to avoid unnecessary costs or delay. Moreover, in this case, appellant filed his answer and counterclaim prior to the hearings, and opened the first hearing with testimony relating to his alleged prescriptive rights. He will not now be heard, on appeal, to object for the first time to the scope of the evidence admitted.
Appellant further charges the trial court with failure to make findings of fact, supported by competent evidence, concerning irreparable injury. The absence of findings required by I.R.C.P. 52(a) and
Appellant argues that the court should have treated his motions to dissolve the permanent injunction and to keep the record open for additional evidence, together, as a motion for summary judgment. Since neither motion may be so treated under Rules 56, 12(b) or 12(c), it does not appear that summary judgment was moved.
In his final assignments of error appellant charges that respondent failed to prove either its prior appropriative rights or appellant's ability adequately to irrigate his farm without diverting more than 10 inches from the stream. Indeed, the record fails to show that respondent's predecessor in interest actually diverted the water in question and put it to beneficial use. Absent such a showing, respondent can not claim rights by appropriation antedating its ownership of the property.
However, it does appear from the record that respondent has diverted and put to beneficial use the water it now claims, since it purchased the farm. Appellant asserts an earlier appropriation by a deceased predecessor, whose son claimed that since 1936 his father had diverted 50 inches or more from the stream. That statement conflicted with evidence of Fern Nipper, the widow of respondent's predecessor, who recalled that appellant's predecessor had diverted only 10 to 15 inches by permission of her late husband. From this conflicting evidence, the trial court found that appellant acquired no interest beyond 10 inches from his predecessor. That finding is supported by competent and substantial, though conflicting, evidence and will not be set aside.
Even if a prior appropriation were found, appellant is not entitled to all the water diverted. Appellant testified
Appellant contends that he cannot apply the full 70 inches to his crops because nearly half is lost as it is conducted from the stream or canal to the place of use. As a result, he is required to draw some 40 more inches from the stream in order to deliver adequate water to the crops. However, the public policy against wasting water prohibits additional diversion to compensate for unreasonable loss.
Finally, appellant claims that his predecessors established a prescriptive right to more than 10 inches of stream water by diverting it and applying it to an adverse use during an immediately preceding period of five or more years.
Judgment and decree affirmed. Costs to respondent.
McFADDEN, DONALDSON and SHEPARD, JJ., and MAYNARD, District Judge, concur.