ON PETITION POR REHEARING.
AILSHIE, J.The respondent has filed a very interesting petition for a rehearing in which its distinguished counsel recite numerous reasons in support of their position that the original opinions herein b'y a majority of the court should not stand as the decision of the court. This case has been attended with much difficulty and labor, and the importance and effect *607of its determination has not been overlooked. Every question presented by the petition was repeatedly considered and discussed by all the members of the court before the filing of any opinion in the case. Some of the reasons argued against the conclusions reached are, we think, largely fanciful and speculative; others, perhaps, real and serious. Of the former we have no fears; with the latter we will endeavor to deal judiciously as they arise. The greatest stress is laid upon the contention that the result of the decision will be to encourage waste and extravagance in the use of water. That position is not well founded. There is no reason why the same economy cannot be practiced and enforced both prior and subsequent to the sale of a rental right as if no right of assignment were recognized at all.
A sale of this right cannot free it of any of its duties or burdens nor lessen any of its liabilities or obligations.
It is argued that to allow a sale and transfer of this right permits a subsequent settler to acquire a water right prior in point of time to an older settler in violation of the constitution. This danger is rather argumentative than real. If one man goes into the market and purchases a piece of property and pays for it he certainly has a right to it although his neighbor wanted the same property and had long previous made overtures to purchase it. The constitutional provision has no reference to such acquisition. Its purpose is to require ditch, owners to furnish water to settlers in the order of their settlement and application. If one who has acquired a rental right sells his right the assignee does not become an original applicant but takes by purchase the right of his assignor, and no other applicant has the right to complain because he is in no different position than that held by him prior to the sale and transfer; no worse, no better. No man secures or acquires a preference in contemplation of law who goes into the market and makes an honest purchase of property and pays the price therefor.
It is suggested that the effect of the decision is to reverse Wilterding v. Green, 4 Idaho, 773, 45 Pac. 134. This is a mis*608taken idea. On the contrary, that ease is cited with approval in the concurring opinion, as may be seen by reading it.
We see no sufficient reason for granting a rehearing in this case and the petition is therefore denied.
Stockslager, J., concurs.