Dissenting. — I am unable to concur in the conclusion reached by my associates in this case. I do not believe that the framers of our constitution or the legislature by any of its enactments concerning water, intended to, or do, grant the same right to a person who rents or leases water from canal owners, as was done in this case, to sell and transfer such right to be used by the purchaser upon different and other land than that upon which it was used, thus giving them the same right that an original appropriator and owner of the water right now has under our law. If the framers of the constitution desired to give the rental users of water the same rights that were given to owners of water rights acquired by purchase or appropriation, they were very unhappy in the use of the language used in article 15, sections 4 and 5 of the constitution. Said sections are quoted in the opinion of Mr. Justice Stoekslager, and it is not necessary for me to repeat them here. The language of said sections clearly indicate, to my mind, that the right to the use of water as provided by said sections under a sale, rental or distribution thereof, was the right to use the waters so rented or distributed upon a particular piece of land. If not, why did the framers of the constitution declare in said sections that after such water bad been sold, rented or distributed to any person who had settled upon or improved land for agricultural purposes with a view of receiving the benefit of such water, that such person shall not thereafter, without his consent, be deprived of the annual use of the same when needed to irrigate the land so settled upon and omprived, etc. ? If the framers had intended to give them a perpetual water right that they might sell and transfer as they desired, to be used upon other lands, why did they use all of the language used in those sections? Why did they not declare that the owners of such land who were the users of water thereon, under a rental, should have a perpetual right thereto upon paying the annual charges, with a right to sell *604and transfer the same at any time to other parties to be used upon other land.
The provisions of said section 5 contemplate that ditch owners must furnish water to the extent of their ability to all settlers under their ditches in the numerical order of their settlements or improvements, thus contemplating that the rental right to the use of such waters should be given to the settlers in accordance with the priority of their settlement or improvement, carrying out the theory that the first settler in time was the first in right. But under the conclusion reached by my associates, a settler who may have settled upon or improved lands under said canal long subsequent to other settlers would thereby be given a preference over older settlers, which I think the provisions of the constitution clearly inhibit. As I understand the law, when water is once dedicated under those provisions of the constitution to a certain tract of land, that tract of land cannot be deprived of that water so long as the owner thereof pays the annual rental for the use of such water, but when the annual rental is not paid, said water reverts to the canal owners to be allotted to the first subsequent applicant therefor in the numerical order of settlement or improvement.
In the case of Wilterding v. Green, 4 Idaho, 773, 45 Pac. 134, this court held that the ditch owner could not require the user of water under a rental to purchase a perpetual right as a condition precedent to the use of such water, thereby holding, at least by implication, that a rental right from year to year was different from a perpetual right. And it appears to me that the conclusion reached in the majority opinion, by implication at least, overrules the doctrine laid down there and holds that a rental right from year to year is the equivalent of the ownership of a perpetual right located and appropriated by the user himself or purchased from such locator and appropriator. The purchaser of a perpetual right, under the conclusions of the opinion, would have no other and greater right than a renter of water for a year or a term of years.
Our statutes in reference to the change of the point of diversion or the point of intended use applies to the change of point of diversion and the change of place of use of rights *605acquired by appropriation or by purchase from appropriated, and not to lessees or renters of water from a canal company who has the' same for sale or rental. Of course I do not mean to say that .one leasing water from the canal company cannot require them to turn the water out of their canal for him, at the most convenient point to the land to be irrigated. As I view them, all the cases cited by counsel for appellant in support of his contention in regard to the change of point of diversion and place of use are not in point. In those cases the parties were the owners of their water rights, either by appropriation or purchase, of which they sought to change the point of diversion or the place of use. In some of those cases, at least, the ditch owners were simply common carriers permitting the owners of water rights to run their water through their canals. The respondent in this case is more than a common carrier of water for the land owner, as it is the locator of and the conductor of the water to the point ■of intended use, and in a certain sense an appropriator of the water — the owner of the water right. Hnder the provisions of section 3163, Bevised Statutes, and acts amendatory thereof, it is clear that when such diversion works are completed from the point of diversion to the place of intended use, that such appropriation is perfected, at least so far as the canal company is concerned. The intent of the legislature was to treat the canal company, and not the one who rents the water from them, as the real appropriator of the water. The law contemplates that such sale, rental and distribution of water is a dedication thereof and brings it under the control of the state. But it was not intended to give the user of such water a sufficient property right therein to enable him to sell and transfer it to be used upon other land. The only right thereto acquired by the consumer was a rental right, which right amounts to a perpetual dedication of such water to the land upon which it is first used; or, in other words, as stated in said section 4 of our constitution, “to irrigate the lands so settled upon or improved.” The intent of the legislature, as shown in the act approved March 18, 1901, section 9b, Session Laws of 1901, page 200 where it is declared that such rights as are here being eon*606sidered “shall not he considered as being a property right in itself/’ was not to give a user of water under a sale or rental a property right thereto. I think it was the clear intent of the framers of the constitution, as well as the various acts of the legislature in regard to water rights, to perpetually dedicate the water used upon certain land, to the use of such land, so long as the owner thereof pays the annual rental therefor, and that such owner of the land might sell the same and the purchaser might continue the use of such water upon such land. But that it was not intended or contemplated that he had such property right in the use of such water as to enable him to sell and transfer it to other parties to be used upon other lands. It is not sufficient to say that it makes no difference to the corporation owning the ditch as to who pays them the annual-charges for the water, and therefore it makes no difference to them who has the water. It must be remembered that others are interested, and if the ditch owners do not have water sufficient to supply the demands of all under their canal, whenever one having a prior right ceases to use it upon the land to which it is dedicated, it then becomes the duty of the canal owners to deliver such water to the first applicant therefor in accordance with the priority of their application in the numerical order of their settlements or improvements as provided by said section 5 of our constitution.
(April 21, 1904.)Under the rule established by the majority opinion, a subsequent settler could procure a right to the use of water in violation of said provisions of the constitution.
The judgment of the district court should be affirmed,