(Dissenting.) I cannot concur in the result attained by the majority of this court expressed in the exhaustive opinion written by Mr. Justice Pope, because I believe that such a result is arrived at through a mistaken conception of the relations of the parties constituting a community ditch and an erroneous construction of the laws governing such ditches. I believe that if such construction is placed upon the acequia laws of the Territory, evil consequences will follow, in that a minority, even of one person, may control the reasonable wishes of the majority, cause unnecessary and unreasonable expense and inconvenience to the community and retard and impede the progress and advancement of the Territory.
Indulging what I take to be judicial knowledge and' common custom, I conclude that a community of persons, like those of Santa Teresa and Colorado, desiring to irrigate their lands for their individual and common benefit of the community, by common consent entered upon an enterprise for the common good and for the benefit of each of those joining the enterprise, namely, to divert and convey water for the irrigation of their lands. The primary object was the water, the thing that made their lands valuable and insured their daily bread, in that, each member personally acquired a property right which cannot be taken away. The ditch was a community affair, it being merely the means of diverting and carrying the water.
In so far as the ditch is concerned, the members of this community were tenants in common and no individual acquired any "property right” to have it run in any particular place or channel, except as it would best serve the community at large. If time demonstrated that a certain portion of the ditch was costing the community too much for is maintenance, that by reason of floods or other causes the established line was impracticable, that during the very months of the year when water was obtainable for irrigation, a portion of the ditch was destroyed and the crops of a large majority of the interested community were being lost for want of water, can one man, or a few men, prevent the majority of those in interest from correcting the mistake and changing the ditch so as to avoid these calamities, when, by so doing, the minority are not deprived of water but are in fact benefited by the change ?
All these facts appear in the answer and are admitted by the demurrer, yet it is held that the change cannot be made unless it appears that it is "practicably impossible” to maintain the ditch on the old line. If such be the law, then the mistake of the builders of the original acequia can never be rectified, no matter if the loss sustained by the majority be so great as to well nigh make their lands valueless, and the community for which and by whom the same was built must forever suffer, because, forsooth, the original builders knew nothing of engineering and placed a portion, of the canal on an unfortunate line, unless the whole community of perhaps a hundred or more persons unanimously consent to the change, a thing which is most unlikely to occur. The idea seems to me preposterous. The very name "community ditch,” implies the good of the community as represented by the majority of those in interest, rather than the minority, or the individual. How does the individual land owner, whose only interest in the main ditch is to have his portion of the water carried to some convenient point where it mav be discharged upon his land, acquire a prouerty right to have the main ditch run in any particular place, whether it be on his land or a half mile from it? What is the nature of his property right? The laws of the Territory make every natural stream a. public acequia, and yet the water in that stream may be appropriated, diverted from its natural course and carried elsewhere for irrigation purposes, regardless of the laud owners through, bv, or near whose land it flows. Tenants in common in property are, and of necessity must be governed by the will of the majority as to the control and management of the common property.
A good deal is said in the opinion of the majority in this case of the sanctity of contract and the .confiscation of property; but I insist that no contract existed except that of tenancy in common in the acequia.
"Where a ditch, through which water is diverted and applied' to any beneficial purpose, is owned by several proprietors, and their relation is not defined by special agreement to the contrary, they are to be regarded as tenants in common of the ditch, and their rights are determined and governed by the rules of law regulating tenancy in common.” Kinney on Irrigation, Sec. 301, page 483), citing Bradley v. Harkness, 26 Cal. 69; Jones v. Parsons, 25 Cal. 100; Reed v. Spicer, 27 Cal. 63; Carpenter v. Webster, 27 Cal. 524; Park v. Kilham, 8 Cal. 77; Duryea v. Burt, 28 Cal. 587; Decker v. Howell, 42 Cal. 642; McConnell v. Denver, 35 Cal. 369.
A majority of such tenants in common have the right to control the management of affairs of the ditch. Kinney on Irrigation, Sec..304; Abel v. Love, 17 Cal. 233.
No contractual relations existed, then, between the original builders except those well-defined relations existing between tenants in common in so far as the ditch, the common property, was concerned; and this, it seems to me, answers the questions of sanctity of contract and property rights in the main ditch. If, then, this was the original status of the parties or members of the community, how were such relations affected by the act of the Legislature of February 28, 1895, and the acts amendatory thereto? The first section of that act (qompiled as Sec. 8, C. L. 1897), is as follows:
“All community ditches, or acequias, now constructed, or hereafter to be constructed in this Territory, shall, for the purposes of this act, be considered as corporations, or bodies corporate, with powers to sue 'and be sued as such.”
Then follow various sections relating to the regulation of such ditches, the election and powers of its officers, the assessment of fatigue work, etc., and the commissioners are given general charge and control of all affairs pertaining to such ditches. True, these laws have been from time to time amended, but the act and its amendments all pertain to the regulation and control of such ditches, and defining their rights as such community ditches. To my mind, the legislature had in mind only the general status of such communities; it endeavored to place them on a uniform base, giving them the right to sue and be sued under the community name, without having to join numerous parties; naming officers upon whom service might be made, and reorganizing by legislative enactment rights and relations already existing. I apprehend that no individual in a community ditch existing at the passage of that act acquired any right not already vested in him, or lost any existing right. I do not think that any change as to the relations existing between the members of such community then took place; but rather such act and the amendments thereto are mere regulations of the government of such communities, and fixing their legal status for the convenience of themselves and those having business relations with them.
I agree with the learned justice, who wrote the majority opinion, that no property rights were, or could be, taken away from the community by the legislature; and I go further and say that the tenancy in common of the ditch itself, which existed prior to the act still exists, and the status of the parties remains unchanged.
The answer fully sets up a condition of affairs that was disastrous to the community. It shows that the community was hampered and its interests suffered by reason of the bad location of the main ditch on its original line, that a large majority of the community recognizing that the common property was not accomplishing the purpose for which it was intended, changed a portion of the line so as to overcome the difficulty, and have been demonstrating for some years the wisdom of the change by actually watering all the lands of the community and avoiding the evil and disastrous consequences arising from the attempted maintenance of the old ditch; that no person lost his water right or was even put to any considerable expense by the change; that plaintiffs are not injured by it, and cannot be; and all these allegations are admitted by the demurrer. The only question, then it seems to me. for our decision is this. Can a minority in interest in a community ditch prevent, by injunction, the majority from changing a portion of the ditch from an ill-advised location, which does not and cannot satisfactorily irrigate all the community lands at all times when there is a sufficient water in the stream, to a different locality where the difficulties are overcome and the ditch maintained at much less expense to the community, provided., that no one having a water right is thereby deprived of such right or put to great expense by the change?
To this, it seems to me, there can be but one answer. Neither law nor equity will aid a stubborn minority in preventing the majority from doing an act for the manifest good of the whole community, where no one is injured, but all are benefited. True, equity will, and should, intervene to protect the rights of the minority from abuse by the majority; but upon the answer in this case, as admitted for the purposes of the demurrer, no such condition exists.
In my judgment, the cause should have been reversed and remanded for further proceedings.
M’FIE, J. — I concur in the doctrine announced in the above opinion as to the rights of the majority, and also dissent from the doctrine announced in the majority opinion.