Dissenting. — I am nnable to concur in that portion of the opinion which holds that under the evidence, respondent, E. K. Taylor, has not shown any right to operate under permit No. 2929. No one claiming under this permit has disputed Taylor’s right thereunder, and the undisputed testimony of Taylor is to the effect that he purchased rights under this permit; that the deed conveying the same was made out and placed in escrow, to be delivered upon the completion of Taylor’s payment therefor, to his grantor; that he completed all the payments, but that upon demanding the deed in escrow it could not be found, and that by mutual agreement the rights which Taylor had purchased from his grantor were conveyed directly from Taylor’s grantor to Taylor’s grantee, reserving therefrom certain rights to Taylor under the permit. Taylor’s evidence is corroborated by the transfer from Ben E. Hervey to the Spokane Irrigation & Power Company, Limited, “saving and excepting a sufficient quantity of said water and water rights to irrigate 1,920 acres of land heretofore expressly reserved and granted unto E. K. Taylor.” While it is true that this language is merely descriptive of the reservation and does not constitute a grant to Taylor, it is evidence clearly corroborating Taylor’s statement that a grant had theretofore been made to Taylor.
This entire action is equitable in its nature, and it is one of the fundamental maxims of equity that equity regards that as done which ought to be done. (1 Pom. Eq. Jur., 3d ed., secs. 363-377, inclusive, and numerous cases there cited.) The facts and circumstances in evidence touching Taylor’s right under Permit No. 2929 lead to but one conclusion, that is, that E. K. Taylor ought to have been granted a right to operate under Permit No. 2929, and in equity this right is as complete as though the grant were actually made in form. All persons claiming under Permit No. 2929 concede Taylor’s interest and rights thereunder. No one else has a right to complain, and his rights under the permit can only be questioned for noneomplianee with the law thereunder, and while it is true that the lands described in Permit No. 2929 cover only a portion of the Taylor lands, the certificate of completion *303of the works issued by the state engineer to Taylor clearly describes all of the lands of the Taylors. The fact that all of the Taylors’ lands were not clearly described in the permit, or, in other words, the fact that they actually applied the water to lands different than those described in the permit would be immaterial. (Mahoney v. Neiswanger, 6 Ida. 750, 59 Pac. 561.) Under the statute the state engineer has authority to grant a certificate of completion of works for lands different from those described in the permit. The state engineer is a public officer, and the presumption is that his acts, within the line of his duties, are regular, and in the absence of any showing that the permit had been amended, the presumption is that all of the regular steps have been complied with.
Nor is it correct to say that the permit in and of itself has no probative force. True, a permit is not a water right, but it does give any lawful holder of the permit, or an interest thereunder, the right to proceed with reasonable diligence and in compliance with the statute to mature the water right. To hold that a permit has no probative force would be tantamount, when pursued to its logical result, to holding that a person could get no rights under the statute which any appropriator would be bound to respect until the holder of the permit was in position to show that he had fully complied with the law in every respect and completed his appropriation by applying it to a beneficial use. (Sandpoint Water etc. Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347; Speer v. Stephenson, 16 Ida. 707 — 716, 102 Pac. 365; Washington State Sugar Co. v. Goodrich, 27 Ida. 26, 147 Pac. 1073.)
The evidence touching the rights of the Taylors and their use of water and the relation existing between B. K. Taylor on the one hand and Samantha J. and J. B. Taylor on the other hand, and the pleadings in this respect appear to be incomplete. The pleadings should be amended to promote the ends of justice in this case in order that the trial court may receive evidence in support of their respective claims and award a judgment in proper form, which would adequately protect the rights of the parties under the law and the facts.
*304Independently of the discussion touching Taylor’s rights under Permit No. 2929, I am of the opinion, under the facts of this case, that the appropriation of the. Taylors should be found to be complete to the right to the use of all of the unappropriated water flowing in Dry Creek, to the capacity of their ditch, not theretofore appropriated by the individual plaintiffs, for the reason that the evidence conclusively shows that the Taylors had constructed their ditch of sufficient size and capacity to carry all of the unappropriated water, and had actually diverted the same and delivered it to the point of intended use, some time during the season of 1908, and a long time prior to the date of the permit held by the Blaine County Irrigation Company. And I think the evidence bears out the statement that the Blaine County Irrigation Company intended to secure its supply of water from flood waters, to be by it conserved in a reservoir for sale and distribution. The completion of the ditch by the Taylors and the diverting of the water to the point of intended use vested in them a property right in the use of the water, which could only be divested by condemnation for a higher use or lost by abandonment. To permit them to be deprived of such a vested property right in any other manner would clearly violate the constitution and laws of this state.
It is not necessary for an appropriator to follow the procedure provided by statute in order to acquire a valid water right which will be good as against all subsequent appropriators. One who actually diverts and appropriates water to a beneficial use or appropriates and diverts water to the point of intended use and thereafter, with reasonable diligence, applies such water to a beneficial use, acquires as good a right thereto as one who appropriates under the provisions of the statute. (Conant v. Jones, 3 Ida. 606, 32 Pac. 250; Brown v. Newell, 12 Ida. 166, 85 Pac. 385; Lockwood v. Freeman, 15 Ida. 395, 98 Pac. 295; Nielson v. Parker, 19 Ida. 727, 115 Pac. 488.)
In the latter case the court said: “It has never been the intention, so far as we are advised, of the legislature to cut off the right an appropriator and user of water may acquire *305by the actual diversion of the water and its application to a beneficial use. This constitutes actual notice to every intending appropriator of the water of such a stream. It is like a man being actually in possession of realty; indeed, a water right is realty in this state (sec. 3656, Rev. Codes; Ada County Farmers’ Irr. Co. v. Farmers Canal Co., 5 Ida. 793, 51 Pac. 990, 40 L. R. A. 485; McGinness v. Stanfield, 6 Ida. 372, 55 Pac. 1020), .... but if he should actually divert the water and apply it to a beneficial use before the rights or interest of any other person intervenes, he would be entitled to the protection of the law in the use and enjoyment of the right thus acquired. He would then be in actual possession of the property to the extent of the diversion and use, and to that extent would need no protection from a constructive notice which a compliance with the statute affords. ’ ’
It is clear, then, that there are two distinct methods by which one may acquire a water right; first, by actual appropriation; second, by compliance with the statute. The difficulty seems to arise in determining just how or in what manner and to what extent, in a given case, the rights of one claiming by actual appropriation have accrued and will be protected. In this case the Taylors went into possession of their land in the spring of 1908; during that season they completed the construction of their ditch, or canal, and actually diverted the water and carried it to the point of intended use, and the evidence shows that they proceeded, with due diligence, to clear their land, to cultivate it and to apply the water to a beneficial use thereon.
If I understand the majority opinion, it restricts the doctrine of relation to the extent of a compliance with the statute, which would be correct if the statutory method were the only method whereby water could be appropriated. But there is another doctrine, well settled in this state and other jurisdictions where the same question has arisen, which is adequate to fully protect the rights of the Taylors in all of the .water which they claim, and this is the well-known doctrine of appropriation for future needs. (Wiel on Water Rights, 3d ed., vol. 1, sec. 396, and secs. 483, 484.) This author says, *306in sec. 483: “But while in mining a fixed amount may usually be sufficient from the start for all purposes, in irrigation of newly settled land it will not. The need for water grows as the area cultivated grows. The settler can cultivate, perhaps, only a few acres the first year; but he does everything with a view to later expansion. As is said in one case, it is reasonable to suppose that reclamation of the entire area owned at the time of diversion is contemplated. (Citing Seaweard v. Pacific Livestock Co., 49 Or. 157, 88 Pac. 963.) Before his larger acreage is cleared and planted, however (which may take several years), other claimants to the use of the water have arrived. Does the law allow the former to continue increasing his use in the face of these later claimants ?
“It seems well settled that such is the rule .... The essence of the rule is that the design may be carried out in spite of an intervening appropriator elsewhere on the stream, as the quotations below show.”
In support of this doctrine the author cites cases from Colorado, Idaho, Montana, Nevada, Oregon, Utah, Washington and California. The only limitations upon the rule are that the future needed amount must have been originally claimed at the time of initiating the appropriation, the future needs must have been in mind, the enlarged use must have been a part of an original policy of expansion, use on the land in question must have been contemplated at the time of the original appropriation, the future enlargement cannot exceed the original capacity of the ditch, the amount actually diverted can be held without using no longer than is reasonable under the circumstances of each case, and the right may be lost by abandonment. What is a reasonable time is a question of fact in each ease and depends upon the magnitude of the undertaking and the natural obstacles to be encountered in execution of the design. Sec. 484, supra, containing illustrations from numerous authorities there cited.
This court clearly and without ambiguity adopted the above rule in this state in Conant v. Jones, supra. Under the circumstances in this case I feel justified in quoting at length *307from the opinion in Conant v. Jones, that portion which is particularly in point, as follows:
“It is contended that respondent .has not used, or put to a beneficial use all of the water of said creek, and for that reason he has forfeited his right to all of the water not used for the purpose intended. It is true that the evidence fails to show that respondent has utilized the entire amount of water diverted. There is no question but what respondent had the right to appropriate, of unappropriated water, sufficient, not only for the present, but also for the future needs of his land, when he shall get it into cultivation.
“The question arises as to the diligence to be exercised in the application of the water to the intended use. Section 3161 of the Revised Statutes of 1887 declares the diligence necessary to be exercised in conducting water to the point of intended use after the location of the same; but the law is silent as to the diligence to be exercised in making application of the water appropriated.
“The appropriator would no doubt be entitled to a reasonable time in which to get his land in cultivation and to make such application. If that be true, it follows that what constitutes reasonable time is a question of fact dependent upon the circumstances of each particular case. No inflexible rule should be made to decide what constitutes a reasonable time in this matter. We are of the opinion that a person who complies with the law as to locating and conducting the water to the point of intended use has such time as he may need, or require, using ordinary diligence in getting his land into cultivation, to make application of such water to the intended use, such time at least, as is reasonable under all of the circumstances.
“Poor men as a rule have settled upon the arid lands of this state and taken them under the laws of Congress, many of them under the homestead law, and are able to clear but a small portion of such lands of sagebrush, from year to year, and put it in condition for raising a crop, and it will take years for many of them to prepare their entire farms for cultivation and to make application of the water appropriated *308thereto. A decision that would defeat persons acting in good faith and using reasonable diligence from securing the full benefit of the water appropriated would be most unjust and inequitable. In the meantime, however, he is only entitled to such water from year to year as he puts to a beneficial use. A person may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand, as his abilities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of intended use.”
The rule there laid down has been followed by this court in Hall v. Blackman, 8 Ida. 272, 68 Pac. 19; Brown v. Newell, supra. It should be noted in connection with the latter case that it was decided in 1906, three years after the adoption of the statute providing for the issuance of permits and the ultimate maturing of water rights thereunder by complying with the statutory provisions. The facts in that case are substantially parallel with the facts in the case at bar, so far as they describe the acts and intention of the Taylors. The court says, in its opinion:
“It is contended by appellant that the acts of diversion and appropriation done by Horton in 1899 did not amount to an actual appropriation. It clearly appears from the evidence that the ditch was opened in the fall of 1899, and the head-gate was put in and the water, to the amount of 200 inches, was actually delivered on the Horton claim. These acts were followed up the next year by extending the ditch so as to more completely distribute the water over the entire claim, and this in turn was followed by cultivation of a larger acreage of the claim. We think the facts bring this case within the well-established rules of law both as to what constitutes an appropriation as well as the reasonable time in which an appropriator may apply the water to the intended use. (Conant v. Jones, 3 Ida. 606, 32 Pac. 250; Pyke v. Burnside, 8 Ida. 487, 69 Pac. 477; Sandpoint Water & Light Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347.)
*309“ .... It is unnecessary for us to consider the validity of the water right notice and claim posted by Horton on March 28, 1900, or of the subsequent steps taken by him under that notice in his endeavor to comply with the law. The actual diversion and application of the water had preceded that date, and it therefore becomes unnecessary for us to consider the steps taken in regard to the posting and recording the notice and the prosecution of work thereafter.”
The facts in the present ease are sufficient to indicate the amount of land settled and occupied by the Taylors, which, from the evidence, it clearly appears they intended to reclaim and irrigate by the application of water, which was actually appropriated and diverted to the point of intended use sometime during the season of 1908. The evidence shows that the ditch was designed to carry the water from their point of diversion to and upon their lands, and that it was completed that season, and that its capacity was adequate to carry water sufficient for the irrigation of all of the lands in question. The evidence further shows that the Taylors have proceeded with reasonable diligence in the application of this water upon their land to a beneficial use in the reclamation thereof. Of all of these facts the Blaine County Irrigation Company had actual notice at the time it secured its permit from the state engineer in October, 1910.
All of the facts and circumstances in evidence clearly show that the Taylors have brought themselves well within the rule governing appropriation for future needs. To hold otherwise would amount to overruling a long line of harmonious decisions governing such property rights in this state and would abrogate a rule of law which is well settled in all of the arid states.
For the reasons herein expressed I am unable to concur in the majority opinion upon this phase of the case. .