dissenting. — I am unable to concur with the majority opinion in either the conclusion or the reasons upon which such conclusion is based. From a careful examination of the pleadings in this case and the entire record, I am satisfied that my associates have reached their conclusion upon a wrong theory of the pleadings, and by overlooking and disregarding the plain provisions of the contract. The general statement of the case as made by Justice Sullivan will be accepted, except in the particulars in which the statement of facts appears not to be in accord with the allegations of the pleadings.
The real controversy in this case is, whether a water right, purchased by a settler upon land under the contract between the Twin Falls Land & Water Company and the state, is entitled to receive water specified in such contract, at the point of diversion of the waters by the Twin Falls Land & Water Company from Snake river, or whether such water shall be delivered to the purchaser within one-half mile of the land where the same is to be used.
Justice Sullivan in his opinion holds, as I understand it, that a settler under a Carey Act reclamation project, when *447he purchases- a water right, acquires the right to use upon the land for which such water is to be applied, the proportion of water diverted, in the ratio that the quantity diverted bears to the aggregate acreage segregated, and it is particularly his conclusion upon this point and the process of reasoning adopted in arriving at that conclusion to which I cannot agree in this case.
A settler’s right to the use of water under the irrigation system of the Twin Falls Land & Water Company should be determined in this ease by the contract entered into between the state of Idaho and the Twin Falls Land & Water Company on the 2d day of January, 1903, and the certificate of sale of a water right under such contract, and it is upon this contract and such certificate of sale of water right that I am led to believe that my associates have misconstrued the contract made between the state and the water company, and have been forced to make a new contract which was not intended by the parties.
In my opinion it is clearly provided by the act of Congress known as the Carey Act, and likewise provided by the statute of this state, that when a settler upon Carey Act land purchases a water right from the company organized for the purpose of providing water for the reclamation of such land, that such water right must be sufficient in volume for the complete irrigation and reclamation of the particular tract of land for which such water is purchased. (28 St. at L., p. 422; 6 Fed. St. Anno. 397; Bev. Codes, sec. 1628.) And to acquire title to such land, proof must be made of “reclamation, settlement and occupation, which proof shall embrace evidence that he is the owner of shares in the works which entitle him to a water right for his entire tract of land sufficient in volume for the complete irrigation and reclamation thereof.”
The contract made between the state of Idaho and the Land & Water Company, paragraph 8, provides: “Said party of the second part further agrees and undertakes that it will sell or cause to be sold to the person or persons filing upon any of the lands herein described or to the owner of other *448lands not described herein, but susceptible of irrigation from said canal system, by good and sufficient contract of sale with right of possession and enjoyment by the purchaser pending its fulfillment, a water right or share in the said canal for each and every acre owned, filed upon or purchased from the state.
“Each of said shares or water rights shall represent a carrying capacity in said canal sufficient to deliver water at the rate of one-eighti'eth of one second-foot per acre and each share or water right sold or contracted as herein provided shall also represent a proportionate interest in the said canal, together with all rights and franchises based upon the number of shares finally sold in the said canal.”
And it is further provided in said contract: “The certificate of sale of water rights and the certificates of shares of stock of the Twin Falls Canal Company, Limited, shall each upon .being issued to -the purchaser or holder of land under the canal system, be made to indicate and define in the contract or certificate as the case may be, the amount of water, to wit: One-eightieth of a second-foot allotted to each acre represented thereby, and a carrying capacity of the canal sufficient therefor, the water to be delivered from the canal during each and every irrigation season, said amount to be measured at or within one-half mile of the place of intended use.” And also: “It is hereby agreed that every purchaser of shares in said canal or holder of stock in said Twin Falls Canal Company, Limited, shall be entitled to have delivered for the irrigation of his land, its full amount of water as herein provided.” And that “in no case will water rights or shares be dedicated to any of the lands aforementioned or sold beyond the carrying capacity of the canal system, nor in excess of the appropriation of the water as hereinbefore mentioned. ’ ’
These provisions of the contract clearly provide that the purchase of a water right will convey to the purchaser a proportionate interest in the entire canal system, and that such interest is a proportionate interest based upon the number of shares finally sold in said canal. But nowhere does the contract provide that the purchaser shall acquire a proportionate *449interest in the water, but the contract does provide that the purchaser of a water right shall receive under such purchase a maximum amount of water delivered within one-half mile of the place of intended use, to wit, one-eightieth second-foot per acre; and the contract further provides that when waster rights or shares of water shall be sold and dedicated to lands, to the extent of the carrying capacity of the canal, there can be no longer any further rights sold or disposed of. These various provisions of the contract indicate that the state board clearly had in mind the act of Congress granting Carey Act lands, and the provisions of the statute, and to secure a compliance with the law clearly fixed and determined in the contract the maximum amount of water necessarily required by the purchaser to reclaim such land, and such quantity of water as would enable the purchaser to make proof in accordance with the law; and also fixed a place where the water should be delivered for use upon the land and fixed a maximum quantity to be delivered at a point one-half mile from the place of intended use. The state land board in making this contract intended that there should be no reason to question the possibility of a purchaser of a water right being compelled to sustain the loss by seepage and evaporation that must necessarily follow the transportation of water from the point of diversion to the place of- use, and to require a maximum amount to be delivered at or near the land to be applied and dedicated to the use and cultivation of such land in the reclamation thereof.
While it is true that sec. 3288 of the Rev. Codes is not a part of the statute which provides for reclaiming lands under the Carey Act project, yet I see no reason why the principle announced in this statute should not be applied to contracts to deliver a certain amount of water, made with the construction company under the statute authorizing contracts between the state and a construction company, under the Carey Act project. This statute provides: “Any person, association or corporation which may contract to deliver a certain quantity of water to any party or parties, shall deliver the same to such party or parties, together with a reasonable and neees*450sary allowance for loss by evaporation and seepage, at some convenient point on the main ditch, canal or reservoir of said person, association or corporation, or any branch or lateral thereof belonging to the owner or owners of such ditch, canal or reservoir.” Whether this statute is a part of the law governing cases of the class involved in this suit, may be a doubtful question, yet in principle its provisions are reasonable, fair and just. Under this principle the company making the contract to deliver water must deliver the same as contracted, and at the point stipulated in the contract, and it is incumbent upon the company to bear all shrinkage which may occur from the point of appropriation to the place of delivery for use. And in this case, under the contract the place of measurement is one-half mile from the lands of the purchaser, and the necessity or requirement of such amount for use upon the land can be determined only by proper proof, and cannot be determined, as stated in the majority opinion, as a matter of law. There is no question in my mind but that the state board intended, and that every purchaser who purchased a water right for the reclamation of land under the Twin Falls tract believed and perfectly understood, that a purchaser of a water right was entitled to receive the amount of water specified in the contract made between the board and the Twin Falls Land & Water Company, and that such water should he delivered within one-half mile of his tract, and that he was thereby assured that such quantity of water to the extent of his necessary needs would be so delivered to him, and it was the right he purchased.
This provision of the contract in my judgment, however, does not mean that a purchaser of a water right under a Carey Act project shall have or receive, or is entitled to receive, a constant flow of water, winter and summer, and all seasons of the year, and all days in the year and all hours in the day or night, but that he shall have what the contract specifies whenever he requires such water for a beneficial use. It must be recognized in this case, as in all water cases, that a party who has purchased a water right in any system of irrigation acquires the right only of using the water purchased, when *451necessary for the nse for which the same is purchased. He cannot require the delivery of such water in order that it may run promiscuously and be wasted; he cannot demand it and compel its delivery simply because he makes the demand, if he has no use for it; and it was not intended by any constitutional provision, and it is not required by any provision of the statute, that a corporation or individual, who sells or rents water or contracts for the sale or rental of water, can be compelled to deliver water to one who has purchased the same, when there is no beneficial or necessary use to which the purchaser intends to apply such water. The public waters of the state must necessarily be used for a beneficial use, and it is the duty of the courts in adjudicating water rights and the necessity for the use, to determine such rights according to the beneficial use made of such waters; and in considering the contract involved in this case I have dealt with it throughout this opinion with reference to the use made of such water under the purchase of shares of stock from the contracting company. This use is clearly recognized by law and also by the contract involved in this case, by provisions relating to the rotation of water, as will be referred to later on in this opinion.
It is stated in the majority opinion that the Land & Water Company made a proposal for the construction of irrigation works, and that the south side canal should have a length of sixty-five miles, and that the capacity of the ditch was 3,000 second-feet, and accompanying such proposal was a water right location for 3,000 second-feet of the waters of Snake river, and that such proposal was referred to the state engineer under the statute, and that the state engineer reported that the area of the land to be irrigated on the south side of the river under the canal system involved in this case was about 240.000 acres, and that for the irrigation of this land a water right notice had been filed for 3,000 second-feet, and that the water supply would be sufficient to irrigate the lands during all seasons, and that upon such proposal and report 240.000 acres of land was segregated under the act of Congress, and that these reasons, together with the fact that some *45218,000 acres of land within the project was state land, were the prime reasons why the state land board entered into the contract of January 2, 1903, and intended in so doing to provide that the 3,000 cubic feet of water appropriated from the Snake rivér by the Land & "Water Company should be applied and used upon 240,000 acres of land segregated, and that such appropriation was sufficient in quantity to properly irrigate and reclaim the full 240,000 acres of land. While the above facts are correct, the conclusion therefrom reached in the opinion does not follow, and an examination of the allegations of the pleadings in this case does not support this contention, but, on the contrary, shows that such was never intended by the state engineer or the state board. The report of the engineer, neither in the language used nor by implication, states the quantity of water required to irrigate each acre of the proposed tract, or the quantity of water per acre that will be provided by the appropriation or the system of works to be constructed. It would be conceding to the engineer a knowledge which is inconceivable, and if his statement is his opinion, it is mere guesswork, and would be purely imagination, for the reason that it would be an impossibility for the state engineer to determine such matter by casual observation of a territory covering 240,000 acres, within the time spent by the engineer in this case in his examination. A judicial determination of the right of a settler in the use and appropriation of water under a reclamation project should not be determined upon such uncertain and indefinite statements, and the, settler ought to have some opportunity to show the necessity of the right to use water, under the laws of the United States and the laws of the state.
Under the statute prescribing the duties of the state engineer with reference to the report, the report of the engineer is merely preliminary to the action of the board, and in no way binds or controls the state board. The system reported upon by the state engineer may be altered or changed by the board, and the board may not accept the report of the engineer and may make a contract upon its own judgment, and the contract itself shows the intent and purpose of the board, *453and under the statute is the only act on the part of either the engineer or state land board which in any way binds the contracting parties. So it seems that the report of the state engineer'is no part of the contract, and notwithstanding what the state engineer may say, the state board still has the power to act upon its own judgment and make a final contract between the state and the contracting company. And if this be true, the report of the state engineer should in no way control or govern the rights of the purchaser of water rights made by settlers upon land under the contract made between the state and the contracting party. And I do not believe that the majority opinion is justified in saying that the report of the state engineer in any way controlled the state board in fixing and determining the rights of the purchaser of water used under such system, but that such rights do emanate from the contract alone and not from the engineer’s report.
The statement of Justice Sullivan as to matters considered by the engineer in designating the irrigation district refutes the correctness of the premises assumed to be true in the opinion. He says: ‘ ‘ The engineer in designating said irrigation system must have taken into consideration the condition of the soil and climate, the amount of water necessary for the proper irrigation of all of said land included within said project required to be irrigated, and also the fact that there would be many thousands of acres in said project required for roads, highways, railroads, barnyards, stackyards, buildings, high points and rocky untillable land, land along fences and other lands on which crops are not raised, which.it is estimated would total about 25,000 acres. These facts were no doubt considered, as well as the probable loss from evaporation, seepage, etc., in conducting the water to the place of intended use. ’ ’
The above statement of Justice Sullivan is true, and a fact known to every common-sense person who is acquainted with the topography of the country and the conditions that must necessarily be taken into consideration in determining the acreage that can properly be irrigated with 3,000 second-feet of water appropriated at a given point and to be transmitted *454to and applied upon such acreage. But the facts as thus stated show very clearly that the state engineer did not determine and the state land board did not determine that 3,000 second-feet of water at the point of diversion, was sufficient to irrigate 240,000 acres of land. It is nowhere stated, either in the report of the engineer or in the contract made between the Land & Water Company and the state board, that 3,000 second-feet of water at the point of diversion will furnish sufficient water to properly irrigate exactly 240,000 acres of land, and because of the fact that there was a large body of land within the segregation that was not susceptible of irrigation, it was the opinion of the state engineer, and likewise the opinion of the board as indicated by the contract they made, that 3,000 second-feet of water would be sufficient to irrigate the lands which were susceptible of irrigation within the segregation, by giving to each purchaser of a water right one-eightieth of a cubic foot of water at a point one-half mile from the land of the purchaser of the water right, and as a result of such opinion the board wrote into the contract now under consideration the provision: “That water conducted through the same may be delivered at a point not exceeding one-half mile from any legal subdivision of one hundred and sixty acres of land herein described, filed upon, owned or occupied as aforesaid and to be irrigated or reclaimed by the water conducted through said canals and main laterals.”
The act of Congress provides that a state upon accepting the provisions of the act shall' reclaim the lands within the segregation susceptible of irrigation, and in making the contract in this case between the state and the Land & Water Company, it was intended by the board to require the Land & Water Company to make an appropriation and construct a system which would furnish water sufficient in volume for the complete irrigation and reclamation of the lands susceptible of irrigation within the segregation, as required by the law of this state, see. 1628, Bev. Codes, and that the contract should require the Land & Water Company to convey a quantity of water sufficient in volume to completely irrigate and reclaim *455the land for which the same is to be used, and that the board did not intend in making such contract to encumber such water right with the responsibilities and uncertainties which would result from loss from seepage and evaporation, but that the purchaser of such right would have a fixed maximum quantity of water to apply to the use required by law.
If it be true that this was the purpose of the law and the intention of the board in making the contract, then it must follow that the extent of the right of a water purchaser under the Twin Falls tract cannot be determined as a matter of law, but must be determined upon the facts as ■ shown by proper proof, and that this court is not justified in saying that one-eightieth of a cubic foot of water at the point of diversion is sufficient in quantity to properly irrigate and reclaim each acre under the Twin Falls tract. It is provided by the contract of January 2, 1903, between the state and the Land & Water Company, that the system shall cover not only the Carey Act lands embraced within the segregation, but also state' lands, to the extent of the appropriation and the capacity of the canal, and I am clear that there can be no question but that the state may make such a contract and include the state lands with Carey Act lands, but that in so doing the state lands take the same status as those granted to the state under the Carey Act, and that the water applied to state lands becomes appurtenant to such lands by the same method and manner as the water becomes appurtenant to the lands reclaimed under the Carey Act. The contract provides: “To the person or persons purchasing any portion of sections numbered sixteen and thirty-six, or any other lands belonging to the state of Idaho which are susceptible of irrigation and reclamation from this canal and to which such water rights are to be applied and dedicated at a price not exceeding fifteen and 50/100 ($15.50) dollars per share,” etc.
It thus clearly appears that the sale or water contract constitutes the dedication of the water to the land, and therefore the water becomes dedicated when the contract of sale of the water right is made, whether the right be purchased for Carey Act land or state land. And the contract also provides, after *456enumerating the prices of such water rights, wherein the price of water rights for state lands is specifically fixed, and says: “But in no case will water rights or shares be dedicated to any of the lands aforementioned or sold beyond the carrying capacity of the canal system, nor in excess of the appropriation of the water as hereinbefore mentioned.” This contract clearly specifies that whenever water rights shall be sold and dedicated to lands, whether they be Carey Act lands or state lands, to the extent of the carrying capacity of the canal system, there can be no further dedication <?r sale of water rights to any lands of any kind, whether state or Carey Act lands.
I think it clearly appears from the pleadings in this case that it was not the intention of the construction company or of the state land board that the construction company should construct a system which should irrigate all of the 240,000 acres included within the exterior boundaries of the segregation, or any definite amount of land, but that the appropriation should be made and a system constructed which would sufficiently irrigate the lands within the segregation susceptible of irrigation, whether Carey Act lands or state lands; and that water rights should be sold represented by shares of stock which would be adequate and sufficient for such irrigation to the extent of the capacity of the system, and that whenever sales of shares of stock equal to the carrying capacity of the system have been made, then further sales of water rights are prohibited, and could not be sold or the water dedicated to any lands beyond the carrying capacity of such system. The extent of the water purchased under such water rights cannot be lessened or affected by the fact that there is yet a portion of the 240,000 acres included within the exterior boundaries of the segregation that can be irrigated, or by the fact that other land within such boundaries is susceptible of irrigation, if the capacity of the system has been exhausted at the time application is made for water for such lands. The contract in this case having expressly provided that each water user should have delivered to him one-eightieth second-foot per acre within one-half mile of his land, if the *457company constructs a system, and such system has the capacity to deliver only a one-eightieth second-foot of water to a less acreage than is described in the segregation, I am unable to find any authority under the contract or the statute which will authorize the company to issue stock in excess of the capacity of the system, as both the contract and the statute prohibit the sale of shares beyond the capacity of the system. The carrying capacity of the system not only means the capacity of appropriation, but also the capacity to deliver the water in accordance with the contract; and whenever water rights have been sold and dedicated to lands up to the extent of the carrying capacity of the system, then both the contract and the statute prohibit the sale of any further water rights.
In this case it is shown by the answer that the carrying capacity of the system to deliver water as provided in the contract has been more than reached by the sales of shares of stock and water rights, and that being true, I do not think that this court should direct the sale of additional shares of stock without giving to the settlers the right or opportunity of presenting proof showing the facts as to the carrying capacity óf this system and the sales of water rights made.
The legal duty of the defendant in’ this case is to be measured and limited by the quantity of water which the capacity of its system will deliver. When this supply is exhausted by furnishing water to those who have a legal right to the use of such water from such system, the legal duty to all others demanding water has ceased; and it is incumbent upon the plaintiff in this case to show not only that the defendant company has sufficient water to supply the demand made, but that such quantity is over and above the amount of water legally required and supplied to other purchasers and users of water under said system who have acquired rights. The legal duty then imposed upon the defendant company to sell shares of stock to West which will entitle him to the use of water upon the lands purchased by West from the state extends only to the surplus water which remains, and is in excess of that previously sold, and the needs of others actually re*458eeiving water and entitled to water by reason of purchase and use in accordance with the contract made between the state and the Land & Water Company constructing said system; and if there is no surplus, the writ of mandate cannot be resorted to.
Referring again to the pleadings, it is alleged in the complaint that at the time of turning over the canal system constructed by the Twin Falls Land & Water Company to the Twin Falls Canal Co., the defendant herein, there remained unsold 42,174.51 shares of stock, and that such stock represented a maximum water right of one-eightieth of a cubic foot per second for each acre of land remaining unsold; and that there was unsold Carey Act land, and also unsold state land within the project, and that the plaintiff has purchased certain state lands and has applied to the defendant canal company for the purchase of unsold stock sufficient to irrigate such land purchased from the state. The answer admits that there were 42,174.51 shares of stock turned over to the Twin Falls Canal Company, and admits that if such shares were sold, each share would represent a water right of one-eightieth of a cubic foot per second for the land to be irrigated thereby, provided there was available water therefor, and denies that the said shares of stock so unsold represent a maximum water right of one-eightieth of a cubic foot per second per acre of land remaining unsold of Carey Act or state land provided for in the contract, or represented a right of any amount to or for any lands whatever, available for said unsold stock; and alleges that there has been and is no water available to supply land which such stock would represent; and alleges that there has been sold by the Twin Falls Land & Water Company 198,721.74 shares of water rights in said system, and the same number of shares of stock in the defendant corporation, and that every share or water right so sold represents the right to receive and have delivered within one-half mile of the place of intended use one-eightieth of a second-foot of water. That by reason of the foregoing all of the water rights in said canal system have been sold, and there now remains no water or water rights in the said canal system *459which can be sold by either of said defendants; and that there is no water or water rights available under and by virtue of the said appropriation or otherwise or at all; and for such reason the defendant cannot sell or dispose of said stock until such a time as by means of other methods available water can be increased, and that said canal system and irrigation works do not have a carrying capacity sufficient to deliver simultaneously or by rotation one second-foot of water to each eighty acres of land to the extent of 240,000 acres of land, or to any amount in excess of the amount of acres now sold and filed upon and entitled to water from the defendant company.
In the face of this denial the majority opinion holds that this denial presents no issue whatever, and that the defendant is not entitled to a hearing thereon, and the opinion holds that there is surplus water unsold, and that stock representing shares of water may be sold, and directs that additional water rights be sold to the plaintiff for the lands by him purchased. If a writ can be issued in this ease, then it is compulsory on the part of the respondent company to sell the additional 42,174.51 shares of stock for additional lands, notwithstanding the fact that the defendant company, which is directed to issue such stock, alleges in its answer that the full capacity of the irrigation system has been exhausted, and that the water sold is required and necessary for the use for which it was sold. This allegation shows a state of facts which in my judgment prohibits the respondent company, both under the statute and the contract, from selling any additional water rights, for it is provided in the contract: “That in no case shall water rights or shares be dedicated to any of the lands aforementioned or sold beyond the carrying capacity of the canal System, nor in excess of the appropriation of the water as hereinbefore mentioned.” If this provision in the contract does not prohibit the sale of water rights beyond the carrying capacity of the canal system, I am unable to comprehend the English language, and the answer having positively alleged that to sell additional water rights will require the use of water in excess of the appropriation made, and the carrying capacity *460of the canal, such issue so presented by the answer in my judgment requires proof upon the part of the plaintiff in order to justify the issuance of a writ of -mandate. (State v. Washington Irr. Co., 41 Wash. 283, 111 Am. St. 1019, 83 Pac. 308; Florida Central R. R. Co. v. State, 31 Fla. 482, 34 Am. St. 30, 13 So. 103, 20 L. R. A. 419; Perrine v. San Jacinto W. Co., 4 Cal. App. 376, 88 Pac. 293; Cozzens v. Ditch Co., 2 Cal. App. 404, 84 Pac. 342.)
The majority opinion overlooks the real test as to when a writ of mandate should be issued. The plaintiff in this case when he entered into the contract with the state to purchase state lands, by the mere fact of making such contract, acquired no rights to the use of water- from the canal system involved in this case. Water had not been sold, rented or distributed to the plaintiff or to the lands which he purchased, and water had never been dedicated to such land, and the plaintiff has in no way acquired any water rights, and has no legal right to demand water from the defendant company, unless such company has water which has not been previously sold. In my opinion, where there is no legal duty requiring that water rights shall be sold in excess of the carrying capacity of the canal system supplying such water, a writ of mandate cannot be enforced to compel such action. (Eev. Codes, sec. 4977.) And especially is this true where the answer positively alleges that there is no unsold water capable of being delivered, and that the carrying capacity of the canal system has been exhausted by the sale of water rights prior to the demand to purchase by plaintiff.
There is some discussion in the briefs of counsel for the parties in this case with reference to the rotation of the water when there is a shortage, and the majority opinion discusses this question to some extent, but in my opinion this question is not involved in this case, notwithstanding the fact that both under the statute and the contract in this case rotation may be required and exacted of users of water when there is a shortage in the supply or service of the water, under water rights purchased in a Carey Act project. But this does not mean a shortage resulting from sales of water rights in excess *461of the capacity of the system. The rotation referred to in the contract and recognized by the statute is a shortage resulting from want of supply or inability to deliver the supply because of some incapacity of the system, such as breakage in the ditch, or something of that kind, and not a shortage arising from use under sales in excess of the capacity of the system, and this question might arise upon a hearing in this case, provided the plaintiff is able to show that the capacity of the system will not. be exceeded by requiring a sale of shares of stock 'to him for the purpose of watering the lands which he has purchased from the state.
For the reasons stated in this opinion I am clear that the respondent in this case should have a hearing upon the facts and issues presented by the answer, and that a writ of mandate should not issue except on the determination of the facts after hearing.