Concurring. — I am in accord with tbe view expressed by Mr. Justice Stoekslager, to tbe effect that the right of the water consumer under an irrigation ditch is such a property right as may be segregated from the land and sold and assigned for use on another and different tract of land under the same ditch. Since the question presented in this case is one upon which there seems to be no authority directly in point, and concerning which there is apparently much difference of opinion among members of the bar, I venture to give some of the reasons which lead me to the conclusions here announced. If they make my position clear I shall be content, and if, on the other hand, they convince those entertaining the opposite view of the correctness of their contention, I shall not have labored in vain.
As I have gathered both from the printed brief and oral argument of counsel for respondent, they place their chief reliance on the provisions of section 4, article 15, of the constitution, and section 9b of an act approved March 18, 1901 (Sess. Laws 1901, p. 200). That section of the act of 1901 provides as follows: “All waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the rights to the use of any of the waters of the state for useful or beneficial purposes are recognized and confirmed; and the right to the use of any of the public waters which have heretofore been or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of or one of the appurtenances of the land or other thing, to which, through necessity, said water is being applied; and the right to continue the use of any of such waters shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water.”
Respondent insists that under the foregoing legislation the right of the water user “shall not be considered as being ea *600property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land” on which the water is applied. The more one analyzes this statute the more clearly it appears that the legislators were not sure as to where they would settle the property right in water after it has 'been diverted from the natural stream, and their language is accordingly uncertain. They say that all water of the state “when flowing in the natural channel” shall be the “property of the state,” but they fail to say where the property right shall be vested after diverted by the appropriator. It is true they declare that “the right to the use” of such waters “shall not be considered as being a property right in itself.” This is immediately followed, however, by the declaration that such right becomes the “complement of, or one of the appurtenances of, the land” on which such right is used. It is clear' to my mind .that this mere declaration that the right to the use of water shall not “in itself” be considered a property right, and shall not therefore be called property, does not either in law or fact deprive or devest such right of any of the qualities or elements of property it otherwise might have. In other words, if a thing really is property, the legislature by saying it shall not be considered such cannot in fact deprive it of the character and quality which constitute it property. It still remains a fact that the legislature recognized this right as valuable, and such a right as will attach to lands as an appurtenance, and one of which the person entitled thereto “shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water.”
Section 3 of article 15 of the constitution declares that the right to divert and appropriate any of the unappropriated waters of the state shall never be denied any person. Mr. Chief Justice Morgan, speaking for this court in Wilterding v. Green, 4 Idaho, 773, 45 Pac. 134, in considering the purposes of article 15 of the constitution, made it very clear that the framers of that instrument were only dealing with the “use” of the waters, and not the property right in the waters. Indeed, it *601can be of no consequence to the state as to where the property right in the waters is vested so long as the people have reserved to themselves the right to regulate the “use.” Respondent seems to argue that because the legislature has made this right appurtenant to the land on which the water is applied, that it therefore becomes inseparably attached to the land, and that the owner of the land cannot segregate the appurtenance from the thing to which it is appurtenant. “Appurtenant,” says Mr. Justice Conway in Frank v. Hicks, 4 Wyo. 502, 35 Pac. 483, 1025, “does not mean, and never meant, inseparable.” I do not conceive of any well-founded reason or principle of law that forbids the owner of a tract of land from separating and segregating an appurtenance therefrom and disposing of it with the same freedom of sale or jus disponendi as he may enjoy with reference to any other property right. But it is argued that under section 4, article 15 of the constitution, that this appurtenance — water right or rental right — can only attach to “the land so settled upon or improved,” and that an attempt to separate the right from the specific piece of land to which it was originally applied works an immediate forfeiture or abandonment. I think the argument is illogical and faulty. The framers of the constitution in drafting this article were reserving to the legislature the right to regulate the use of waters and the “so settled upon,” refers back to the “use” for which it was “settled upon,” namely, agricultural purposes. The language used is not in the nature of a prohibition upon the consumer, but is rather a grant to him of a perpetual right to the use of such waters which can never be forfeited or defeated except upon one condition, and that is that he fails to pay the annual rents therefor. Now, the question arises: Shall we read into this' constitutional provision another condition of forfeiture or abandonment which the framers thereof never saw fit to incorporate into the fundamental law? I think we should not.
Again, it seems to me that before the courts can be justified in denying to any person the right to voluntarily sell and dispose of any property right he may possess, they should find such prohibition clearly expressed in law. It is a fundamental principle that every citizen has the inherent right to dispose of all *602his acquisitions (1 Blackstone’s Commentaries, 138), and unless that inherent right be expressly abridged by law, it should not be done by the courts. This is such a right as the law recognizes, and the courts are almost daily called upon to protect.
Irrigation companies construct ditches and canals and divert water by means thereof for the purpose of irrigating the lands lying under their distributing works, but their property is valueless without consumers. The settler takes up the land and clears it of the brush and puts it in a condition that makes it susceptible of irrigation. This is done at a considerable cost and expense, and is the price the constitution requires the consumer to pay for the right he acquires under the ditch as distinguished from the annual rental he must pay the ditch owner for delivering the water. This right is perpetual if the owner of that right keeps up his annual payments.
Is it possible that after the consumer has thus aided the company in perfecting and completing the water appropriation by applying it to a beneficial use that he still has no right which he can apply to another piece of land or sell to his neighbor? Suppose he originally took up forty acres of land and acquired a right for the same and years afterward finds a use for his original tract for which it needs no irrigation, and in the meanwhile lie has acquired an adjoining forty — will it be contended that he cannot use the water on that tract? If that be true, then he has a right, valuable to others and for which his neighbor is willing to pay a consideration, and in the acquisition of which he has been to much labor and expense, that at once becomes valueless by reason of judicial construction and forfeiture.
It has been uniformly held by the courts of the. arid states that those who divert and appropriate waters from the natural streams may change the point of diversion and place of use of such waters so long as the same does not interfere with the rights of others, and that they may sell and transfer such right.
I can see no more reason for denying this right of sale and disposition to 'a settler under a ditch than for denying it to the settler under the natural stream, and an examination of the repeated legislation of the state ever since the adoption of the •constitution will at once disclose the fact that the legislature has *603never recognized or attempted to distinguish any difference between the two settlers in this respect.
I concur in the reversal of the judgment.