A rehearing was granted in this case and the cause was again argued exhaustively, and the court has again made a thorough examination of the case as presented by the record. Upon the rehearing it is strenuously contended by counsel for respondent that this court erred in announcing as a rule of evidence: “It is necessary in this case for the respondent in this ease to show the appellant has a surplus of water running in said canal over and above that to which prior users are entitled, before he can recover in this action.” While this rule is correct, as applied to certain facts, we have deemed it proper to clearly draw the distinction between the cases to which this rule is applicable, and cases falling under the reverse of the rule.
The evidence clearly establishes the fact that the lands of respondent were irrigated prior to 1907 with water for which the appellant and its predecessor in interest charged an annual rental therefor. The court found, Finding 18:
“That at no time prior to the date the said defendant purchased and took possession of said canal system, (Jan. 1st, 1906), or at any time since such date, has the full capacity of said canal system or all of the water carried by such system, been applied to a beneficial use by users of water prior to the said plaintiff.”
This finding presents the most important question involved in this controversy, and that is, whether the water with which the respondent’s land was irrigated, prior to 1907, and for which appellant and its predecessor in interest charged an annual rental, was water flowing in the canal system of the *24appellant which had not previously been appropriated by other users; or whether the water, with which respondent’s land was irrigated, was surplus water supplied to respondent and- his predecessor in interest at times when the prior appropriators thereof were not in need and not using, and if the latter, what is the extent of the respondent’s right by such use or the dedication made by his use of such water.
Under art'. 15, sec. 4, of the constitution, “Whenever any waters have been, or shall be, appropriated or used for agricultural purposes, under a sale, rental, or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use; and whenever such waters so dedicated shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, administrators, successors, or assigns, shall not thereafter, without his consent, be deprived of the annual use of the same when needed for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, and compliance with such equitable terms and conditions as to the quantity used and times of use, as may be prescribed by law.”
This section of the constitution deals with unappropriated and undedicated water. It does not apply and is not intended that water, which is temporarily being used, shall thereby be dedicated to a perpetual use to the exclusion of those who are entitled to the same by a prior right. This section of the constitution must necessarily be construed in connection with the provisions of sec. 5 of the same article, which provides:
“Whenever more than one person has settled upon, or improved land with the view of receiving water for agricultural purposes, under a sale, rental, or distribution thereof, as in the last preceding section of this article, provided, as among such persons priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improvements; but whenever the supply of such *25water shall not be sufficient to meet the demands of all those desiring t'o use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the legislature, having due regard both to such priority of right and the necessities of those subsequent in time of settlement or improvements, may by law prescribe.”
Thus it will be seen when these two sections are construed together, that while the application and use of water under a sale, rental and distribution thereof is deemed an exclusive dedication to such use, yet such dedication cannot extend beyond the character of the water thus dedicated; that is, where all the water of a canal has been appropriated and applied to a beneficial use under a sale or rental, and when not needed by such appropriators, is furnished under a sale and rental to a subsequent applicant and is used by such applicant for a beneficial use, the dedication extends only to the right to use such water when not required and needed by such prior appropriators. The rights of the prior appropriator must at all times be recognized; and in an action to compel the owners of a canal to furnish water to such subsequent applicant, the canal company can only be compelled to furnish the water so dedicated by such applicant, that is, the waters applied to a beneficial use by him when not' needed by the prior appropriators thereof.
We do not understand that where all of the water flowing in a canal has been appropriated, but at times when such appropriators are not using all of such water, the same is furnished by t'he canal company, temporarily, to an applicant therefor, that such applicant thereby secures a perpetual right to use such water as against the prior appropriators thereof, and that the canal company can be compelled to supply such applicant with- such water when demanded by the prior appropriators. It is the policy of the law to prevent waste of water, and when prior appropriators in a canal are not using all of the water to which they are entitled, the canal company may supply such water to any other applicant therefor, but by so doing such applicant does not become vested *26with a right superior to that of the prior appropriators. (Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752.) His right is measured by the character of the water supplied him. In other words, if the water supplied him was merely for a temporary use, when not required and needed by prior appropriators, his right extends only to the temporary use when such prior appropriators are not in need of the same, and it is to this extent, and to this only, that a dedication of such water takes place under the constitution. When such water is demanded and required by prior appropriators, the constitutional rights of the subsequent user are not interfered with by taking the water from him and giving the same to the prior appropriator. If, then, Finding No. 18, supra, is supported by the evidence, that there was water flowing in t'he appellant’s canal unappropriated at the time respondent made demand therefor in May 1907, upon the respondent offering to pay the price demanded by the irrigation district, or securing the same, and complying with all reasonable rules and regulations of the district, the respondent was entitled to the water demanded, and could apply to the courts for a writ of mandate to require the appellant t'o furnish such water.
This brings us to a consideration of the rule of evidence announced in the former opinion and referred to in this opinion at its opening, and that is, upon whom does the burden of proof rest’ where it is sought by a water user to compel a canal company to furnish water for his use? If the application for water be for lands which have not previously been irrigated, then it is incumbent upon the applicant to allege and prove that the canal company has water flowing in it's canal to which prior appropriators are not entitled; and it was in this sense that the court announced this rule in the former opinion, treating the case from the standpoint that the only wafer used by the respondent was waste water, the use of which gave the respondent and his predecessor in interest no right to demand water directly from the canal. If, however, water has been received under a sale or rental, and applied to a beneficial use upon land, then such wafer *27is dedicated to such use; and when such user applies to the court to compel the canal company to furnish such water, he makes a prima facie case by showing the previous use and the offer to pay or secure the charge made for such use and the offer to comply with reasonable rules and regulations of the company; and the burden is upon the company to show why it does not or cannot furnish the same, or the extent of the dedication. (Witterding v. Green, 4 Ida. 773, 45 Pac. 134; Shelby v. Farmers’ Co-op. Ditch Co., 10 Ida. 723, 80 Pac. 222; Bardsly v. Boise Irr. & Land Co., 8 Ida. 155, 67 Pac. 428.)
If the water furnished by the canal company or district was surplus water only, that is, water not required by prior appropriators at the time the same was furnished, then the user acquires a right only to such surplus water, and the canal company may show such fact, and can only be compelled under such circumstances to furnish the water to the user when not required by prior appropriators. In this case, as shown by Finding 18, the court found that the full capacity of the appellant’s canal system or the water carried therein had not been applied to a beneficial use by users prior to the application of the plaintiff. There is some evidence to support this finding; there is strong evidence against this finding; but inasmuch as there is a conflict in the evidence, we cannot say it is not supported by the evidence.
It is next contended by appellant, and this court was impressed with that contention upon the original hearing, that the only water, furnished by appellant and its predecessor in interest and applied to a beneficial use by respondent and his predecessor in interest, was waste water. It appears from the evidence that the greater portion of the lands of respondent was irrigated from water taken from what is designated in the record as the Wilson Drain ditch, that is, a ditch which did not connect with the canal system of the appellant district, but a ditch which was supplied wholly from water furnished to other lands and wasted from such lands into such drain ditch. Of course if that fact be true, the respondent could not maintain an action against the appellant requiring *28the appellant to supply such waste water, as the supply does not depend upon the acts of the appellant but wholly upon the water wasted from lands of other users. The trial court in its findings and decree directs that the appellant furnish to respondent fifty inches of water through Tap 75; but the record does not show a ditch or channel connecting Tap 75 with the lands of the respondent. The water turned out through Tap 75 and which eventually wasted upon the lands of the respondent was water turned out through said tap upon request of one G. T. Kinzer, t'he predecessor in interest of the respondent, who at such time had charge of and was managing what was known as the Wilson fruit farm; and the water turned out through Tap 75 was turned out for the purpose of irrigating t'he Wilson fruit farm. This being true, the court was in error in directing the appellant to turn' out through Tap 75 fifty inches of water for the use upon the lands of the respondent. The mere fact that the appellant collected a rental from respondent for water taken from the Wilson Drain ditch would not give the respondent a right to demand and receive water directly from the irrigation system of the appellant, in the absence of such Wilson Drain ditch connecting with such system, as the respondent’s right would depend wholly upon the water in the waste ditch. If there was no water wasted therein, then the respondent is not entitled to receive water directly from the canal system of the appellant, and is confined only to his right to the waste water flowing in the Wilson Drain ditch, if any. If he desired to receive water directly from the canal system of the appellant, it was his duty to connect himself with such system. While it is true that a canal company is required under the law to deliver water to a user at such proper and convenient' places as he may demand, yet a canal company cannot be compelled to turn out water through a tap in its canal when the applicant has made no provision for taking the same at such point and carrying the same to his lands.
The court in its decree directed that the appellant turn out twenty inches of water through Tap 77 for the purpose of irrigating respondent’s lands. A careful review of this *29case convinces us that water was taken directly from the appellant system through Tap 77 to the lands of respondent and his predecessor in interest prior to the year 1907, and by reason thereof the water so taken became dedicated to such use to the extent of the water so furnished; that is, if it was water which had not previously been appropriated and was supplied to the respondent under a sale and rental thereof, then the respondent’s right to the use becomes perpetual. If, however, such use was merely temporary and was supplied only when prior users were not demanding the same, then the respondent’s right extended only to the water furnished, the surplus water.
From the record in this case it.is apparent that the trial court proceeded in making its findings and decree upon the theory that the furnishing of water by the appellant and its predecessor in interest to the respondent and his predecessor in interest thereby perpetually dedicated such water to the lands of respondent, without reference to whether the water so furnished and used was the surplus water flowing in the canal system of the appellant or water which had previously not been appropriated. To do justice between the parties to this controversy will require a new trial of said case, and, inasmuch as the cause must be reversed, because the evidence does not warrant the decree of the court in directing that fifty inches of water be supplied respondent through Tap 75, we have concluded that it is proper that a new trial should be granted herein, in order that the parties may present their case in line with the law as herein announced.
The judgment is reversed and a new trial ordered. Costs awarded to appellant.
Ailshie, J., concurs.