(Concurring in the conclusion reached.) — I concur in the conclusion reached by my associates, but I cannot consent to the doctrine that sections 4 and 5 of article 15 of the constitution apply to any water except such as has been appropriated for agricultural purposes under a sale, rental or distribution thereof, and water *30the animal right to the nse of which the appropriator shall not be deprived without his consent. It does not apply to what some have termed “flood water” or water not in use by a prior appropriator which the ditch company may rent or sell to others temporarily, nor to waste water, for the user of such waters is not absolutely entitled to the annual use of the same unless the prior appropriator does not need it, or in case there may cease to be any waste water for the appr'opriator of such water to use. The last two classes of users, as a matter of right, cannot compel the ditch companies to deliver such water when there is none. In a canal where its full capacity is taken to supply prior users with water, the prior users are entitled to the full capacity of such ditch whenever they need it, and the ditch company has no power or authority to deliver flood or surplus water annually, if there is none; nor have they the authority or power to compel the prior users to waste any certain amount of water so that one appropriating waste water may receive any certain amount thereof.
It is provided, among other things, in section 4 of said article of the constitution, that whenever the water therein referred to has been dedicated as therein provided, by sale, rental or distribution, to any person who has settled upon or improved agricultural lands, with a view of receiving the benefit of such water under such dedication, such person ‘ ‘ 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,” etc. This section of the constitution, as well as section 5, clearly applies to only such water as the user may rightfully demand annually, as the constitution provides that' he “shall not thereafter, without his consent, be deprived of the annual use of the same.” Said provisions of the constitution have no application whatever to any waters that the user may be deprived of the ‘1 annual use ’ ’ without his consent. They therefore do not apply to flood waters or water which the prior appropriators may not at the time need, or to waste wafer, as the users of such water have not the right to de*31maud and receive the same “annually,” whether there be any flood or waste water. Those provisions apply, only to such water as may with right be demanded annually by the user, and which the constitution provides the user “shall not thereafter, without his consent, be deprived of the annual use of the same.” They do not apply to waters that the user may be deprived of without his consent.
There is no doubt but what the legislature has authority to provide by law for the use of water when not in use by prior appropriators. The legislature has provided for the appropriation of waste water by section 3246 of the Revised Codes, which is as follows: “All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state shall be governed by the same laws relating to priority of right as those ditches, canals, and conduits constructed for the purpose of utilizing the waters of running streams.” The act embodying this section was passed in 1899. (See Laws 1899, sec. 23, p. 383.)
But my contention is that' the said provisions of the constitution have no application to any water except such as the user shall not be deprived of without his consent, and the right to the use of which he may legally demand each and every year, or, as stated in the constitution, annually. The rule laid down by my associates may be just and equitable, but that has nothing to do with my contention.
I therefore concur in the conclusion reached by the majority of the court, that a new trial must be granted in this case.