Dissenting. — I cannot concur in the conclusion reached by the majority of the court. I do not think any question is raised as to the compensation for water, or the terms and conditions of payment therefor. The plaintiff demanded water for a single season, and tendered one dollar and fifty cents per acre, cash, therefor and alleged that said sum was reasonable compensation for the use of said water. The defendant refused to grant plaintiff’s demand, and informed the plaintiff that he would not furnish him “any water from said canal, for the reason that plaintiff had not heretofore cultivated or irrigated any portion of said land by means of the waters of said canal, and for the further reason that defendant had established a new rule and regulation for the disposal of the surplus.waters flowing in said canal; that, by reason of said new and additional' rule and regulation, said waters of said canal would not be sold, rented, or disposed of, for use upon any land which had not been irrigated, cultivated and improved by use of the waters of said canal prior to the first day of January, 1896, unless the applicant therefor first paid said defendant, as such owner of said canal, the sum of ten dollars per acre for a perpetual water right for the use of the land desired to be irrigated. And the said defendant further informed the plaintiff that water would not, under any circumstances, be furnished to this plaintiff for the irrigation, cultivation, and improvement of said above-described tract of land, unless said plaintiff first purchased from defendant, or agreed to purchase, in accordance with the terms fixed by defendant, a perpetual water right therefor, at the rate of ten ($10) dollars per acre, as aforesaid.” As shown by the above-quoted averments of the complaint, the defendant refused to furnish plaintiff water, “under any circumstances,” unless he first purchased a perpetual water right. The opinion of my associates states as follows, to wit: “It is true, plaintiff alleges that one dollar and fifty cents per acre for the year 1896 is a reasonable sum for said use.” “De*788fendant, in effect, denies said allegation, as he refuses the water upon the terms, and proposes other terms, which are not accepted, all of which appear by the complaint.” I ask, what other terms did defendant propose that are, in effect, a denial that one dollar and fifty cents per acre was reasonable compensation for the use of water for the year 1896 ? The other terms proposed were a perpetual water right, or no water. That was the ultimatum of defendant, and insisted on as a condition precedent to letting plaintiff have water for the season of 1896. The plaintiff does not complain of the price charged for a perpetual water right, as he does not demand one. The defendant does not complain of the sum offered for the use of water for the season of 1896, but, in very plain terms, says, “I won’t let you have water for a single season, £under any circumstances/ unless you first purchase a perpetual water right.” Thus the issue is clearly defined. The issue is over the rule or regulation refusing water for a single season unless a perpetual water right be first purchased, and not over the compensation to be paid for the use of water for a single season, or the terms and conditions of payment therefor. I think that said rule and regulation is unreasonable and unjust, under any facts possible to be shown, and that the judgment of the lower court should be affirmed.