The constitutional question involved in this controversy is one of vital importance to the welfare of our people, and the determination thereof by this court must be far-reaching in its consequences to those engaged in agricultural pursuits. Hence, while concurring in the opinion of Mr. Justice Hayt, a further expression of opinion upon the merits of the question so fully ai’gued by counsel seems desirable at this time.
The question under consideration may be stated thus: Does the “priority of appropriation,” which the constitution declares “shall give the better right as between those using the water for the same purpose,” apply to the individual consumer taking the water through the agency of an artificial stream, or is it limited to those taking water directly from the natural stream?
The appropriation of water, within the meaning of the constitution, consists of two acts — First, the diversion of the water from the natural stream; and second, the application thereof to beneficial use. These two acts may be performed by the same or different persons; but the appropriation is not complete until the two are conjoined. Hence, when the acts are performed by different persons at different times, it becomes necessary to determine which is the essential act to which the “better right ” attaches.
It will be observed that, by the express language of the constitution, the “better right” is guarantied “as between those using the water for the same purpose.” The different purposes specified are domestic, agricultural and mechanical. Whether there are other purposes not specified need not now be discussed. Can the carrier of water for hire be said to be using the water in the sense spoken of in the constitution? The railroad company, which carries farming implements from the *131great manufactories of the east to supply the farmers residing upon the broad prairies of the west, can hardly be said to be using such implements by the mere act of thus transporting them. From the specification of the purposes for which the water may be used it would seem that the “better right” which attaches to the priority of appropriation was primarily intended for the benefit of those who apply the water to the cultivation of the soil or other beneficial use, rather than for the benefit of those engaged in diverting and carrying it to be used by others. The diversion and carriage of water in point of time are necessarily prior to the application of it to agricultural or other useful purposes; but they are subordinate in point of right. The former are to the latter as the means to the end,— an end without which neither the diversion nor the carriage would be lawful. The carrier is the agent, the consumer is the principal. The former can lawfully pursue his occupation only by virtue of the service he renders to the latter. The consumer’s right is primary, and unconditional; the carrier’s is secondary, and dependent.
It is claimed that “the constitution recognizes priorities only among those taking water from natural streams.” A reference to sections 5 and 6, article 16, will show that it is the water of natural streams, irrespective of the mode of diversion, that is dedicated to the use of the people, subject to appropriation; and priority of right thereto is made to depend upon the time of using the water for beneficial purposes, and not upon the fact of taking the water from the natural stream. Indeed, the word “ from ” does not appear in either of the foregoing sections; but it is not necessary to rely upon mere verbal analysis to sustain the consumer’s priority of right based upon priority of use. Every consumer cannot take the water directly from the natural stream. Irrigating ditches and canals must be resorted to as a means of diverting and carrying the water to places where it *132can be beneficially applied. No good reason can be urged why a consumer obliged to make use of such agency should not be protected equally with those taking water directly from natural streams.
The foregoing views are believed to be in harmony with the several opinions of this court upon the subject of water-rights. In the case of Thomas v. Guiraud, 6 Colo. 530, it is said: “The true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or making such application, is immaterial.” In the case of Wheeler v. Irrigation Co. 10 Colo. 582, Mr. Justice Helm used the terms “carrier” and “consumer,” as used in this opinion, to denote the party diverting and conveying the water, and the party applyiug the same to beneficial uses, respectively. In delivering the opinion of the court in that case the learned justice says: “The diversion ripens into a valid appropriation only when the water is utilized by the consumer.” Speaking of the rights of the carrier, he declares: “They are dependent for their birth and continued existence upon the use made by the consumer. ” The same opinion is authority for the doctrine that neither the title nor a salable interest in the water of natural streams vests in the carrier by means of his diversion or cai'riage thereof, but the ownership remains in the public, “ save, perhaps, as to the limited quantity that may be actually flowing in the consumer’s ditch or lateral.”
In Rominger v. Squires, 9 Colo. 328, there was a consolidation of two ditches forming a new one, which was to supply the .consumers from the two old ditches, and the question arose as to what were the relative rights of the several consumers in respect to priority of right to the use of water under the consolidation. The appellee attempted to maintain that “the appropriations of water by the different parties were to be referred to the same date,” and the district court so held. But this court, Mr. *133Justice Elbert delivering the opinion, held that the priorities of the consumers had not been waived; that the finding of the district court was not supported by the evidence,— the learned justice remarking “that while the agreement provided for a change of the water-way, it in no wise contemplated or provided for a change of water-rights. Having reference to their rights in the old ditches, the evidence shows priority of appropriation on the part of several of the original constructors of the new ditch, and among others Saalfeldt, the grantor of the defendant Bominger. Water-rights in this state, where agriculture is almost exclusively carried on by means of irrigation, are valuable properties. * * * It is not reasonable to suppose that priority of right to water, where water is scarce or likely to become so, will be lightly sacrificed or surrendered by its owner; nor should the owner of such a right be held to have surrendered it or merged it, except upon reasonably clear and satisfactory evidence.”
In Coffin v. Ditch Co. 6 Colo. 446, similar views were expressed, as follows: “ Houses have been built and permanent improvements made, the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.” The latter opinion is also authority for the doctrine that priority of right to water by priority of appropriation is older than the constitution itself, and has existed from the date of the earliest appropriations of water within the boundaries of Colorado. From these opinions the conclusion seems inevitable that the “better right,” acquired by priority of appropriation, is applicable to individual consumers as between themselves when they receive the water through the agency of an artificial stream, as well as when they receive the same *134direct from the natural stream. Also, that if the prorating of the water actually received into an irrigating ditch in time of scarcity between all the consumers can be effected by legislative enactment, then the superioritj7, of right acquired by priority of appropriation is without protection or security; and houses and other permanent improvements of prior appropriators may be rendered comparatively valueless.
Since the doctrine of priority of appropriation is applicable primarily to the consumer, it may be asked, what, then, are the objects and purposes of the acts of 1879 and 1881, providing for the determination of priority of rights to the use of water for irrigation between ditches, canals and reservoirs? The question is not as difficult to answer as might at first appear. They are in the nature of police regulations to secure the orderly distribution of water for irrigation purposes, and to this end they provide a system of procedure for determining the priority of rights as between the carriers. This opinion must not be understood as denying that carriers may acquire and enjoy certain rights resulting from priority of appropriation (strictly speaking, priority of diversion) as between themselves. In a certain sense they may be said to be “usingthe water for the same purpose,” and so, by analogy, may be termed “ appropriators,” or “ quasi appropriators,” of water. Hence, to secure and protect these rights, and to prevent conflicts which otherwise would almost inevitably ensue if the diversion of water from the natural streams were not placed under governmental control, the acts of 1879 and 1881 were passed. While, under these acts, carriers are recognized as having priorities of right to the use of water by appropriation as between themselves, yet the act of 1881 very clearly indicates that these priorities are dependent upon the carriers supplying the water to actual consumers. Section 1 requires that the statement to be filed by the party claiming a priority for any ditch, canal or reservoir shall set *135forth “the number of acres of lands lying under and being, or proposed to be, irrigated by water from such ditch, canal or reservoir.” Section 4 of the same act says: “It shall be the duty of the court to proceed to hear all evidence which may be offered by or on behalf of any person, association or corporation interested in any ditch, canal or reservoir in such district, either as owner or consumer of water therefrom, in support of or against any claim or claims of priority of appropriation of water made by means of any ditch, canal or reservoir. * * * ”
In passing these acts our legislators evidently considered that the priorities of carriers might be determined and regulated as between themselves; but they were careful to base these priorities upon the service to be rendered thereby to actual consumers. The carrier’s priority of right to water is established and regulated by statute as a matter of convenience; the consumer’s priority is based upon the laws of nature ex necessitate rei. It has existed from the date of the earliest appropriations of watein this country; it was recognized and firmly engrafted into the constitution. Schilling v. Rominger, 4 Colo. 104; Coffin v. Ditch Co., supra.
Section 4 of the act of 1879 (Gen. St. § 1722) provides for prorating the water actually received into and carried by any irrigating ditch, canal or reservoir among all the consumers therefrom in time of scarcity, so that all such consumers shall suffer proportionately from the deficiency of water. This provision may be properly carried into effect when the rights of all the consumers are equal in the matter of their respective appropriations, as when a ditch has been constructed as a common enterprise by and for the mutual and equal benefit of all the consumers therefrom, or when, by reason of contractual relations, waiver, or other circumstances, certain consumers stand on a footing of substantial and practical equality, having no priority of appropriation one over another. *136Schilling v. Rominger, supra,. In Dorr v. Hammond, 7 Colo. 83, it is held that a consumer may foi’feit his priority of right to the use of water by abandonment through non-user; but where it appears as a matter of fact that one person has been accustomed, in a lawful manner, through the agency of an artificial stream or otherwise, to take and apply the unappropriated waters of a natural stream to proper beneficial use, without waiver or 'abandonment, from a period antedating such taking and use by -others, then, to the extent of such prior taking and use, a prima facie priority is established, and the statutory regulation for prorating must give way to the “ better right ” acquired by such priority of appropriation under the constitution, and such priority must be respected by the ditch company, its officers and managers, and all others in any way connected therewith. Giving said section 4 a literal and unqualified interpretation, and it manifestly conflicts with the constitution; besides, as we have seen, the uniform decisions of this court plainly indicate the rule to be that, as between those using the water of natural streams for the saíne beneficial purpose, priority of use gives superiority of right, irrespective of the mode of'diversion.
A single illustration will suffice to show the disastrous consequences which would ensue if the prorating statute should be made the rule for the distribution of water for purposes of irrigation,, instead of the rule of priority. An irrigating ditch is constructed, the first and only one taking water from a small natural stream. The first year five consumers apply for and receive each one hundred inches of water for the irrigation of their lands; the next year, the ditch being enlarged, five more apply and receive a like quantity; and the third year, five more; and so on successively until thirty or forty consumers are located under the ditch. Perhaps the first five might be required to prorate with each other in time of scarcity, should their appropriations be practically equal in *137point of time; but under the statute the first five would also be compelled to prorate with all subsequent consumers until the amount of water that each would receive would become so infinitesimally small as to be of no practical value, and would eventually be entirely wasted before it could be applied. It requires a volume or ‘ ‘ head ” of water to irrigate successfully. Under circumstances like these, what mockery to contend that the prorating statute is “a reasonable regulation” provided for the distribution of water to the early settlers and. prior ap- • propriators who bought and improved their lands and expended their money, relying upon the doctrine that “priority of appropriation shall give the better right as between those using the water for the same purpose! ”
It may be said that the foregoing illustration is founded upon an extreme and unusual case; but extreme cases are often necessary to test the correctness of general rules. It may also be claimed that, as an irrigating ditch acquires an additional priority for each enlargement, the statutory rule for prorating is to be enforced only as between those receiving wrater under the same priority. The unanswerable reply to this claim is that such is not the language of the prorating statute; nor does such appear to be the status of defendants as shown by the complaint in this action. If defendants are in fact entitled to prorate with plaintiff, they may undoubtedly by answer set forth any facts from which such right arises.
The responsibility of thus limiting the operation of the prorating statute has been fully considered. The authority “of the general assembly to enact laws regulating the distribution of water to actual appropriators, provided they do not substantially affect constitutional or vested rights, is undoubted ; and the doctrine that it is the duty of the courts to uphold and enforce every act of the general assembly within the sphere of civil government, so far as the same is not in palpable conflict with the constitution, is recognized and admitted to its fullest extent, *138as it has been by the repeated decisions of this court. The acts of 1879 and 1881, providing for determining the priorities of the several ditch-owners taking water from the same natural stream, as between themselves, are altogether reasonable and proper; and since the adjudication of such priorities is based upon the priorities of the actual consumers from such ditches, there would seem to be no room for conflict between the consumers and the ditch-owners in reference thereto. The plaintiff in this action does not seek to interfere with such adjudications; hence what has been said upon that subject was for the purpose of excluding the inference that there was any intention by this opinion to disturb the decrees entered in pursuance of the acts of 1879 and 1881, adjudicating the priorities as between the owners of ditches, canals or reservoii-s. All that plaintiff asks is that the defendant company shall at all times in distributing the water actually received into its ditch l-espect plaintiff’s priority of right to the use therebf, and not impair or desti-oy such right by prorating the water in time of scarcity among those consumers whose rights were acquired subsequent to those of plaintiff. Thus all apprehensions of difficulty or confusion from a double system of priorities are shown to be without foundation, and the lawful enjoyment of water-rights is secured to all classes, according to their respective priorities, by a mode of procedure at once plain, simple, business-like and just. The state, through, its appropriate officers, distributes the water to the carriers according to the statutory adjudications of their respective'priorities; the earners redistribute the water thus received to their consuméis according to their respective priorities, based upon user, unless by contract or ■waiver they have consented to a prorating, or by abandonment or other circumstances have forfeited their prior rights. This mode of procedure is analogous to that adopted in all extensive governmental or business enterprises for the orderly management of large,.-interests. *139The division and subdivision of labor, responsibility and numerical force prevent complications and insure efficiency and justice.
Thus far the important question involved in this case has been considered as the same was argued by counsel upon both sides. It is contended, however, that the demurrer challenging the sufficiency of the complaint, in its statement of facts, is well taken upon other grounds, some of which are extremely technical, and will not be noticed in this opinion. A high standard of technical accuracy in the preparation of pleadings in irrigation cases should not be required, lest the products of the soil be destroyed while time is wasted on mere matters of form. A plain statement of the substantial facts should be held sufficient.
In this case it is averred in the complaint, in substance, that the plaintiff has a priority to the use of water through the ditch of the defendant company for the irrigation of his lands, antedating the priorities of the other defendants. Even if this averment, which would seem to be only a legal conclusion, should be held sufficient, there still remains the- substantial defect that the complaint nowhere states that plaintiff has in fact been accustomed to take and apply the water, without waiver or abandonment, or at all, to the irrigation of his crops or trees. It was error, therefore, to overrule the demurrer.
Notwithstanding I heard and determined the demurrer iu the court below, the importance of the questions involved, and the diverse views of the different members of the court, have caused me to depart from my usual custom, and to participate fully in the review of the case in this court. I concur in the reversal of the case for the reasons stated in this opinion.
Reversed.