on rehearing.
3. The provisions of see. 2339, TT. S. Rev. Stats., were intended to protect persons in their rights to the use of water and were not enacted for the purpose of enabling contractors who construct ditches for an agreed compensation to procure title to rights of way for such ditches. 4. Held, under the facts of this case that the appellant corporation was a construction company, and as a construction company is not entitled to a title to a right of way for ditches under the provisions of see. 2339, supra. 5. The owner of an irrigation diteh, constructed over public lands, does not acquire title in fee to such right of way, but a conditional easement which will be defeated by his failure to use it for the purpose for which it was obtained. 6. After the commencement of the construction of sueh canal, the law contemplates that the work shall be prosecuted with due and reasonable diligence to completion. 7. Held, that the provisions of said sec. 2339 were not intended to give anyone title to the right of way for segments of canals merely because they constructed them. 8. Said sec. 2339 provides for protecting sueh rights to the use of water as vest and accrue by a priority of possession, and such as are recognized and acknowledged by local customs, laws and decisions of the courts. 9. The provisions of said sec. 2339 refer to the right of way for sueh ditehes as are used in connection with vested water rights, and unless one has a vested and accrued water right, he is not entitled to an easement over any public lands for the construction of ditches. 10. Sueh title as the provisions of said sec. 2389 gives does no't vest until the completion of the ditch, and unreasonable delay in its completion forfeits any claim to the right of way. SULLIVAN, J.A rehearing was granted in this ease and respective counsel made oral argument before this court on the rehearing. In the petition for rehearing it is contended that this court was misled as to the facts of the case by the “erroneous statements, misrepresentations and unwarranted implications” contained in respondent’s brief in numerous particulars, but on the oral argument counsel for appellant did not point out wherein the court had been misled as to the facts, and we are fully satisfied that the facts as stated in the original opinion fairly represent the facts involved in this case, and that the court has not been misled in regard thereto.
*79It is next contended that the court failed to pass upon the rights of appellant under see. 2339, Rev. Stats, of the IT. S. (7 Fed. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), which involves the appellant’s title to the rights of way for the construction of said ditches or canals. Said section is as follows:
“Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purpose, have vested and accrued, • and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
The question arises as to what right the appellant has secured under the provisions of said section to the right of way for the four segments of ditches referred to, when applied to the facts of this case. The record shows that none of said ditches have been completed and that it would require the expenditure of a large amount of money to complete said irrigation system. The ditch nearest the river is 50 feet or more above the level of the river and the highest one is over 200 feet above the level of the river. After said segments of ditches were constructed, the appellant quit all work thereon April 4, 1910, and had done no further construction work in order to complete the same at the time this action was tried. The facts are quite fully set forth in the original opinion. It does not appear from the record that the appellant company owned any water right or any rights to the use of water for the purpose of irrigating said lands; and it further appears that said appellant company was simply a construction company. It appears from the exhibits, 1 to 31, referred to in the original opinion, and entitled “Application and Agreement for the Purchase of Said Stock,” that *80the Apple Cove Association was organized for the main purpose of securing the construction of an irrigation system and thereafter owning and operating the same. It is recited in said exhibits as follows:
“Whereas, the undersigned is the owner of the lands and premises hereinafter described, which are situated under and are susceptible of irrigation from said proposed canals, and by reason thereof, is desirous of securing the construction of said canals and the installation of such pumps and pumping plants and the furnishing of power for operating the same;
“Now, therefore, in consideration of the premises and for ttíe purpose of inducing the said Power Company to undertake the construction of said canals,” etc.
The object and purpose of the owners of said land was to procure the construction of such canals and works, and it was provided in the contract with the Apple Cove Association that the appellant company should take all of the capital stock of said Apple Cove Association as full payment for the construction of said canals. It is clear from the contract entered into for the construction of said canals and system and the applications referred to that the appellant company is nothing more nor less than a construction company, and that it had not by “priority of possession” rights to the use of water for the irrigation of said land, which had vested and accrued at the time said contract was entered into or at the time it quit work upon said ditches in April, 1910. Said see. 2339, Rev. Stats, of the U. S. (7 Fed. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), clearly contemplates that one who seeks the benefit of the right of way for ditches over public lands must have some rights to the use of water which are recognized and acknowledged by the local customs, laws and decisions of the courts of the state wherein such system is being constructed, before it is entitled to the right of way for the construction of ditches or canals for the purposes specified in said section. Said section, being reduced to its clear meaning, might be read as follows: “Whenever rights to the use of water have vested and accrued, the possessors and owners of such vested rights shall be maintained and pro*81teeted in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed.” “For the purposes herein specified” unquestionably means for the purpose of maintaining and protecting the owners and possessors of water rights which have vested and accrued. Appellant, is claiming title to a right of way, and the only right of way claimed is that for the ditches constituting a part of the irrigating system appellant contracted to build for the Apple Cove Association. The easement for a right of way is entirely dependent upon the use, and if there is no use for the ditches under the original purpose there can be no easement. The appellant has entirely failed to carry out its original purpose for which said ditches were built, and, in fact, cannot now carry out such purpose. It does not propose and does not offer to do so. The purpose for which said ditches were built has been accomplished by the work of the respondent company under its agreement with the settlers, and if such right of way was ever secured, it was by the Apple Cove Association, which was to own and hold and operate the ditches after they were built and the system completed for the benefit of the land owners. Part of the land over which said ditches extend never did revert to the United States government by relinquishment of filings or otherwise, and unless appellant can show its right of way across such tracts of land also, it has no continuous right of way, since continuity of the right of way is wholly broken up by the land of parties who never did relinquish their land to the .government after said ditches were constructed. Said appellant corporation being a construction company merely, and having no water right vested and accrued, it does not come within the scope and meaning of said section 2339.
Under the laws of this state there are two methods of acquiring water rights: One is to follow the statutory procedure and file an application for water with the state engineer, in which case there is a vested right which dates its inception from the time of filing the application with the state engineer. *82The .other is to divert unappropriated water and apply it to a beneficial use without making application to the state engineer, which right dates from the application of the water to a beneficial use. The statutory method is the exclusive method by which the right can relate back to the filing of the application with the state engineer. (See Nielson v. Parker, 19 Ida. 727, 115 Pac. 488.)
Said sec. 2339 was enacted by Congress to protect the appr-opriator and user of water. It is an act to protect rights to the use of water and not an act to protect contractors who construct ditches for an agreed compensation for those who desire to use the water. Under the main contract the Apple Cove Association agreed to furnish the right of way over which said ditches were to be constructed. That, however, was for the purpose of constructing the ditches and not for the purpose of vesting title to the right of way in the appellant, the construction company. The main agreement and the applications of the settlers do not contemplate that the construction company should have absolute title to the right of way, but clearly contemplate that the title to the right of way should be retained in the settlers, or in the Apple Cove Association, that being the corporation representing the settlers.
The only permission to construct said canals on the part of the appellant was the permission obtained through the applications for the purchase of said stock by the settlers and the contract of appellant with the Apple Cove Association. The only permission granted to the appellant company was a permission to construct said system for an agreed compensation. The appellant was a construction company, pure and simple. As a construction company its right or demand would be for compensation for the work and labor done and not for title to the rights of way. This right would exist, if at all, against the settlers on their applications for the purchase of stock. Plaintiff’s Exhibits 1 to 31 show clearly that whatever implied consent was given by the settlers to the company was merely a permission to construct said canals and not to grant title to appellant to a right of way for said canals.
*83Under the facts of this case the appellant did not become the owner of the rights of way over which said segments of canals were constructed, either under the provisions of said sec. 2339, U. S. Rev. Stats. (7 Fed. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), or under said main, or any, agreement or 'contract.
In 2 Kinney on Irrigation and Water Rights, sec. 934, the author lays down the following rule:
“But the owner of an irrigation ditch constructed over public land never has a title in fee to it, but a conditional easement, which will be defeated by his failure to use it for the original purpose for which it was obtained. Where an appropriator has become entitled to a right of way for his canal, he has a possessory right or interest in the land at the time of the inception of his right, which becomes absolute by the subsequent construction of the works, provided that the construction is prosecuted with all due and reasonable diligence to' completion.”
If it were conceded in this case that the appellant was an appropriator • of water and that it was constructing said ditches for itself and not as á construction company for another, there still remains the fact that it did not prosecute its work “with all due and reasonable diligence to completion,” and that there has been an entire “failure to use it for the original purpose for which it was obtained.” The appellant ceased its construction work on said ditches in April, 1910, and left the same in an unfinished condition— in a condition that they could not possibly be used for irrigating said land without spending a large amount of money in the completion thereof and in the construction of flumes connecting them with a pumping plant, and the construction of a pumping plant, work on which it is conceded was not commenced at the time this action was brought, to wit, February 15, 1912, about two years after all work had ceased on said ditches.
It appears from the record that the original purpose for which said right of way was intended cannot now be accomplished, for the reason that the settlers owning the land *84under said canals have made other arrangements whereby they get water for the irrigation of said lands. The appellant has failed to construct said system “with all due and reasonable diligence to completion,” and has failed to use it for the original purpose for which it was intended.
Said section refers to vested rights to use water, and whatever construction may be put upon the meaning of that term, it is plain that the appellant did not have, and did not attempt to show on the trial that it had, a vested and accrued right to use water. The manner in which any right to water could vest and accrue would be for the company to appropriate such water and eventually apply it to a beneficial use. But in this ease it has lost all right to apply the water to a beneficial use to said lands, as the purpose under which the ditches were constructed has failed and it has no water. The land to be supplied with water from those Hitches is now supplied from another system.
Appellant claims title to the ditches in question. Said sec. 2339, U. S. Bev. Stats. (7 Fed. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), does not purport to give title to any land, but merely the right to use any land for the purpose of protecting a vested and accrued water right. All of the facts in this case show that the appellant cannot use the ditches for the original purpose for which they were constructed. It does not appear that it has any power to raise the water from the river to supply the ditches with water; that it has any water right; that it has any permission of the land owners to irrigate their lands. It has forfeited and lost the right under which said segments of ditches or canals were originally built .to supply said land with water. The provisions of said section 2339 were not intended to give anyone the right to secure title to the right of way for segments of canals and maintain possession thereof merely because they built them without putting them to some use, and in this case, the use for which they were intended.
A number of courts of last resort have construed the provisions of said see. 2339, U. S. Bev. Stats. (7 Fed. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437).
*85In Clear Creek Land & Ditch Co. v. Kilkenny, 5 Wyo. 38, 36 Pac. 819, the supreme court of Wyoming said: “The inception of the water right of plaintiff in error, without which no right of way for the irrigating ditch to carry the water could exist, arose by appropriation. ’ ’
In Taylor v. Abbott, 103 Cal. 421, 37 Pac. 408, the supreme court of California said: ‘1 The plaintiff is not entitled to the relief sought herein by virtue of the provisions of sec. 2339 of the Revised Statutes of the United States.....It merely provides for protecting such rights to the use of water as may have ‘vested and accrued’ by priority of possession, and as are recognized and acknowledged by local customs, laws and decisions of courts.”
In Nippel v. Forker, 26 Colo. 74, 56 Pac. 577, the court said: “As it is only the right to, or the right of way for, such ditches and reservoirs as are used in connection with a vested water right that the owner of the latter can assert, unless he first acquires a vested and accrued water right, he is not entitled to an easement over any public lands for a reservoir used in connection therewith.”
In Cleary v. Skiffich, 28 Colo. 362, 89 Am. St. 207, 65 Pac. 59, 21 Morr. Min. Rep. 284, the court said: “In support of this proposition, -sections 2339 and 2340, Rev. Stats. U. S., are -relied upon, which provide, in substance, that whenever rights to the use of water for mining purposes have vested, and are recognized by the local customs, laws and decisions of the courts, the owners of such rights shall be protected in the same, and the right of way for the construction of ditches for the purpose of utilizing such water is confirmed. ’ ’
In Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240, 4 Morr. Min. Rep. 504, the supreme court said: “In other words, the United States by the section said, that whenever rights to the use of water by priority of possession had become vested, and were recognized by the local customs, laws and decisions of the courts, the owners and possessors should‘be protected in them; and that the right of w>ay for ditches and canals incident to such water rights, being recognized in the same manner, should be ‘acknowledged and confirmed.’ ”
*86In Bear Lake & River Water Works & Irr. Co. v. Garland, 164 U. S. 1, 17 Sup. Ct. 7, 41 L. ed. 327, it is held that it is the doing of the work, the completion of the ditches within a reasonable time from the taking of possession, that gives the right of way for the ditches over or through the public land to one who has a vested and accrued right to the use of the water. It is clear from the discussion in this case by the supreme court of the United States that a right of way cannot be acquired under the provisions of said sections except in connection with a water right, and that title thereto does not vest until the completion of the ditch, and that any unreasonable delay in completing the ditch forfeits any claim to the right of way. The facts in this case clearly show that the construction of the system contracted for was not prosecuted with reasonable diligence; that it cannot be used for the original purpose for which it was partially constructed; and that said segments of ditches were mostly constructed over private lands, or at least lands that had been filed upon under the laws of Congress which afterward became public lands, owing to the fact that the irrigation system of which said ditches were to become a part had not been constructed with reasonable diligence.
We therefore conclude that appellant has not secured any right of way for the segments of ditches constructed by it under the provisions of said sec. 2339 or under said main contract with the Apple Cove Association for the construction of said ditches, or because of said applications of the settlers to purchase water for the irrigation of their lands, and that the conclusion reached in the original opinion in this case must be affirmed and the judgment of the trial court sustained, and it is so ordered. Costs are awarded to respondent.
Ailshie, C. J., and Stewart, J., concur.