On Rehearing.
Mr. Justice Maxwelldelivered the opinion of the court:
*60The petition for rehearing proceeds npon the propositions:
1. That the opinion decides the case npon the less important issne, the right of way to the ditch, rather than upon the more important issue, the appropriation of water.
The statement of facts in the original brief of appellees is:
“August C. Boye and Benjamin H. Eaton, appellees here, brought their action as plaintiffs in the district court of Weld county setting forth the location, construction and ownership of a certain ditch, several miles long, traversing a natural draw and flood water-way, which ditch, as it is alleged, had been constructed by themselves and their predecessors in interest, commencing such construction the 13th day of October, 1886.
“The plaintiffs set forth that, lately, prior to the beginning' of the suit the defendants who now own certain lands crossed by a part of said ditch, had interfered with the operation of plaintiff’s ditch and were setting up certain claims of title thereto'; that the said interference constituted a trespass upon the rights of plaintiffs and that the claims asserted by defendants were without foundation, in fact or in law, whereupon plaintiffs below prayed that their title be quieted in and to the said ditch in question, and that the defendants below be enjoined from interference with said ditch or the operation thereof by the plaintiffs.
“The action is an action to quiet title, and for ancillary relief by injunction to guard and protect such quieted title, and to prevent interference with plaintiffs in the operation of their ditch and the conduct of their business dependent thereupon.
“The principal thing in the case is the determination alid quieting of the title to the property, and *61this being settled and determined, the injunctive relief follows as a matter of course. ’ ’
The appropriation of water is not mentioned in the foregoing.
The decree quiets title to a right of way about 3500 feet in length across appellants’ land, “of sufficient width to enable the owner to go upon said land and up and down said ditch for the purpose of maintaining, operating and repairing the same,” and uses the expression “right of way” no1 less than eleven 'times.
.Four-fifths of the evidence adduced at the trial pertained to the right of way. It seems to follow that the right of way was the principal issue tried and determined by the court below, and that at the time the decree was prepared and the statement of facts written by counsel, that the “right of way” was uppermost in his mind.
2. It is insisted that the opinion violates the well settled rule' that, where there is conflict in the testimony, there being testimony in support of the findings of the lower court, this court is bound by such findings.
In our view, the opinion does not violate the above well settled rule.
In the last brief filed by counsel for appellees in support of the petition for a rehearing, the issues presented by the pleadings are thus stated:
“ (a) The making of an appropriation from the draw in question.
“(b) The building of the ditch to the extent necessary to constitute a physical demonstration of the intent to take.
“(c) The acquisition of the right of way for such ditch in' a lawful way and manner.
“(d) Also the affirmative issue tendered on the part of defendants that said defendants had them*62selves made an appropriation of the waters of the draw which was prior to the appropriation of the plaintiffs below, appellees here.”
We may concede that all of the above issues were properly decided in favor of appellees, and still the decree cannot be sustained, for the reason that, while it may be true that the right of way was acquired against appellants’ remote grantor and an appropriation of the water then existing made, the existence of such rights cannot avail appellees as against appellants upon the record as here presented.
The waters appropriated by appellants in 1899 were not in existence, and hence not the subject of appropriation, in 1886, the date of the inception of appellees’ alleged rights.
Such waters were caused by the construction of a reservoir at a period later than 1886, the seepage of the land from that and other sources, and the development thereof by the appellants upon their own land. The evidence is overwhelming and practically uncontradicted, to the effect that the land along the supposed line of the ditch and in the draw was cultivated every year for more than twelve years previous to the trial of the case. Appellants had no knowledge nor any notice, actual or constructive, of the existence of the easement claimed by appellees.
A right of way for an irrigation ditch is an easement. An easement is a charge or burden upon the land of one for the benefit of another. A bona fide purchaser of land without knowledge or actual or constructive notice of the existence of an easement, takes title to the same relieved of the burden or charge of the easement.
In Tynon v. Despain, 22 Colo. 240, cited by appellees, at page 250, it is said:
“It remains onfy to determine the rights, if any, of the defendant in this case. First it should be said *63that he knew that this ditch was built across these lands which he was about to buy, and he knew it before he bought, and parted with his money. Under the said acts of congress the grantees of the land, now owned by the defendant, took them subject, by operation of law, to the burden of the right of way for the ditch. This easement under our laws, certainly is continuous, apparent and necessary. The defendant therefore, took these lands with the same burdens, and, as to the easement of this right of way, his estate is to the same extent servient as it was in the hands of his grantors.”
The converse of the above proposition is true. The appellants here took lands without knowledge or notice of the easement of the right of way. Their estate, therefore, is not servient to the extent that it was in the hands of their grantor.
In the view taken, it is* immaterial whether the right of way was acquired before or after the entry of the land by the remote grantor of appellants.
The judgment will be reversed. Reversed.
Chief Justice Gabbert and Mr. Justice G-unter concurring.