(dissenting) — -I dissent from the holding of the majority. Lack of time, owing to the change to be made in the personnel of this court within the next few days, prevents me from elaborating my views or going into the authorities. It will be enough to say that this action is brought against a mutual ditch company, not organized for profits, of which Steward was a member. Upon the theory of the majority, he is as guilty of negligence as any other member of the company and could not maintain an action in his own behalf. Berg stands in his shoes and can claim no greater right against the company than Steward could claim. Furthermore, a mutual ditch company should not be held to answer for the torts of one or more of its members. To do so, would charge the innocent as well as the guilty and put upon the innocent the burden of keeping a private contract made by one of the co-owners and in which they had no interest whatever.
In consultation I asked the majority to tell me, or to state in the opinion, how the judgment in this case could be ex*465ecuted. The question was not answered nor has it been answered in the opinion. The answer to that question furnishes the key to the whole superstructure of this case. As it now stands, plaintiff has a judgment, which, in my opinion is a paper judgment which cannot be enforced by taking the property or money of the unoffending members. They owed Berg no contract duty, and no implied duty, and the water which they had bought and paid for is as essential to the tillage of their land as it was to the land leased by Steward to Berg. Surely no court will ever hold that the judgment can be executed by a sale of the ditch property. If it should, then may the property of the innocent and unoffending be taken at will, and justice will be a name without substance.
Crow, C. J., Fullerton, and Mount, JJ., concur with Chadwick, J.