(Dissenting.) — I concur in the order reversing the judgment, but I feel compelled to dissent from the order dismissing the action and thereby denying relief in the circumstances presented in this record.
The broad purpose of the action is one seeking relief in conformity with the Kent decree, as that decree was rendered and as it continues in force unmodified. The plaintiffs claim the right to use forty-eight inches of water to irrigate each quarter-section of land. They base their claim on actual use of the water for such purpose for more than forty years, and upon the unmodified Kent decree as evidence of that right both as to the right of use and the quantity they are au*583thorized to use. Besting upon such rights, the plaintiffs assert that the defendant canal company refuses to deliver the said amount of water aforesaid, the company admitting at the same time that said amount of water has heen delivered to it by the water commissioner, and the grounds for such refusal are based solely upon the assertion that the rules, regulations and by-laws of the canal company control the quantity of water delivered to the shareholders’ lands, and such rules, regulations and by-laws require the water carried to be prorated to the lands without regard to priority of use.
The inquiry presented is whether the plaintiffs have a clear legal right to have the water carried and delivered to their lands in conformity with the law and with the Kent decree as tmmodified, or whether the plaintiffs, with other shareholders, have among themselves agreed to distribute the water otherwise, and by such agreement and long-continued practice waived all priority rights to use water carried by the canal company for the irrigation of their lands.
The inquiry is one of fact to be settled from the evidence on the subject, and, when settled, is conclusive of the matter. The case is one properly remedial by mandamus, if the facts establish a clear legal right in the plaintiffs.
Beferring to the facts as established in the Kent decree, without quoting them, we are informed that when plaintiffs’ oldest quarter-section of land was irrigated, and thereby reclaimed, fifty-nine shares of the defendant canal company were owned and held without land representing, and thus were known to the shareholders as “dead” shares, and such shares took no water service while they remained “dead.” When plaintiffs’ second quarter-section of land became so reclaimed, fifty shares in the association were “dead” shares.
*584The irrigation of plaintiffs’ lands for forty-three and forty-five years by the nse of water from the Salt River, carried by the defendant canal company, gave plaintiffs the right to the prior use of water in the-amount adjudicated and determined-by a solemn judgment of a court, viz., the Kent decree. The Kent decree became and is a muniment of title to the use of water of the Salt River 'for irrigating the lands to which such water is appurtenant. The said decree is evidence of that title, and it determined the relative prior rights of the individual shareholders of the canal company. The by-laws of the canal company have recognized the rights of the old lands to the first use of the water, and the officers managing the affairs and business of the company are commanded by the by-laws to furnish water to the shareholders as they are legally entitled to such water. The directors of the canal company and its other officers, in effect, have accepted the Kent decree as binding upon them in the matter of the amount of water specified in said decree as sufficient for use on the lands, viz., forty-eight inches, miner’s measurement, for each quarter-section of land cultivated and served by the Tempe canal. The canal company having accepted the plan of the Kent decree, and at all times since having acted upon it, by such acceptance and action the company and its shareholders are estopped from refusing to carry out the terms of the decree as a rule, regulation or by-law of the association in so far as the decree effects the diversion and carriage of the water turned into the canal for the users. The defense of the canal company is therefore not supported by the facts.
The canal company’s right to take water rests in its duty owing to its shareholders, and the duty is not performed by the canal company until it has delivered the water confided to its care by the court commissioner for the use of the shareholders as they are legally entitled to it. The water is measured to the *585canal in strict accord with, the rights of the appropriated. The decree settled snch rights both as to order of service, which is final, and as to the amount of water served, which is subject to change.
The canal company cannot be heard to dispute the appropriator’s right to prior use of water as fixed by the Kent decree so long as the water is turned into the canal on authority of such decree, nor can it dispute the amount of water awarded the plaintiffs’ lands by that decree so long as it receives from the river flow the amount of water specified in that decree as applicable to plaintiffs’ lands. The canal company cannot receive forty-eight miner’s inches of water for , each of plaintiffs’ quarter-sections of land when the flow of the river is sufficient in amount to turn that amount into the ditch for plaintiffs’ lands, and then, after coming into the possession of such water for that special purpose, by authority of the carrier’s directors divert a portion of the water to some other lands having a right subsequent and subordinate to the lands for which the water was taken from the river against the objection of the prior appropriator. If 'such power is allowed to a carrier of water, exercised through its shareholders, a prior appropriation of water has no value to the appropriator, but is subject to the wish of a majority of the directors of the carrier. Such is not the law of water rights as those rights have been settled by the decisions of the courts and the legislature of the state. Hence the facts in evidence point out a clear legal right to the amount of water claimed. „
Evidence in this case is overwhelmingly to the effect that older lands have had first right to the use of water in seasons of scarcity. No settled custom has existed by which the prior right of old lands to the water has been denied. The by-laws, rules and regulations of the canal company point unerringly to the fact that prior rights exist and have at all times, when ques*586tioned, been recognized by the canal company and by its shareholders — owners of lands irrigated by means of the defendant’s canals.,
With these facts in the case, I am of the opinion that the plaintiffs have shown a clear legal right to recover, and under the. authority of Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 Pac. 598, they are entitled to a judgrhent coercing the defendant canal company to carry and deliver to their lands the amount of water decreed to that purpose in the said Kent decree so long as that decree remains operative, and so long as' an amount of water sufficient for that purpose is delivered to the defendant at the point of diversion from the Salt Eiver by authority of the Kent decree.
These reasons compel the conclusion that the judgment appealed from must be reversed, and at the same time the mandatory power of the court ought to be exercised in awarding to the plaintiffs the relief given them by the Kent decree and denied them by the defendant canal company. In the matter of the execution of the Kent decree, full faith and credit should be given that judgment so long as it remains unmodified.