On Petition for Rehearing.
Mr. Justice Gabbektdelivered the opinion of the court:
The arguments of counsel for appellee and amici curiae in support of the petition for rehearing of appellee, are evidently based upon an erroneous assumption of what has been determined in this case. It is contended that adjudication decrees are disturbed, and that appellant, by the decree directed, will be awarded an enlarged use of water represented by its purchases, both in quantity and time. It must be borne in mind that this decision is based upon the. fact, which is undisputed, that the stockholders of appellant are growing crops which do not, from their nature, require irrigation during the early part of the season, but do, later; and that they desire to utilize the water in controversy for this purpose. Based upon these facts we have declared — what has time and again been decided by this court — that the character and method of use of a priority to the use of water may be changed, provided such change does not injuriously affect the rights of others, and that appellant is entitled to divert and store the water represented by the priorities purchased for the use of its stockholders for application to crops later, but in no greater quantity and ¿t no other or different time than could be diverted and applied to land directly to nourish crops requiring irrigation at the time of such diversion; or, otherwise expressed, appellant is permitted to divert and store the water in controversy, but this right is measured end fixed by the limitations which the law would impose upon its *389use for diversion and application to crops requiring irrigation at the time of such diversion. This does not conflict with any previous decisions of this court; but, on the contrary, is sustained by The Colo. M. & E. Co. v. The Larimer & Weld I. Co., 26 Colo. 47. See, also, Mills’ Irrigation Manual, § 56. This does not enlarge the use of the priorities of appel1 lant,_ either in time or quantity; neither does it confer upon it the right to divert and store the water represented by its priorities every day during the irrigation season, or to convert such priorities into a storage right during the non-irrigating season, as contended by counsel, but limits its rights strictly to the diversion of water, both as to volume and time, to the same quantity and the same time we have indicated. Thus, it is apparent, that no rights are infringed, that no one is deprived of water to which he is entitled by reason of the change in the method of use, and that to supply appellant with the water which it will be entitled to store under the decree directed, there cannot possibly be any greater burden imposed upon the common source of supply of the respective ditches owned or controlled by the parties to this appeal. Neither are any priorities disturbed; but, on the contrary, the decree directed leaves the relative rights of the parties to this appeal precisely as they were; whereas, if the judgment of the lower court should be affirmed, the result would be, where an appropriator had no use for water represented by his priorities in the early part of the season because of the fact that he was growing crops of a character which did not require irrigation during that period, and he could not store it at that time for use upon these crops when, later, it was necessary to irrigate them, to take from him and give to another.
*390It is contended by counsel that the decision in this case is contrary to The New Loveland & Greeley I. & L. Co. v. Consolidated Home Supply Ditch Co., 27 Colo. 525, and The Fort Lyon Canal Co. v. Chew, 33 Colo. 392. In the New Loveland case it was determined that the appropriation of water for the irrigation of lands during the irrigation season gave the appropriator no priority of right to store water during the non-irrigating season for future use. This does not conflict with the opinion in the case at' bar. No right to store water during the non-irrigating season is conferred. The gist of the decision in the Chew case is, that the owner of a water right would not be permitted to make it do double duty. When he had applied it for the purpose for which it was appropriated, he could not loan or lease it to another for irrigation purposes; but that is not this case. The stockholders of appellant do not at once apply the water diverted, but appellant is allowed to divert and store for their use the volume of the priorities in question which it would be entitled to divert for application by its stockholders to land directly, to mature crops requiring water at the time of such diversion; so that but one use of the appro1 priations in question is made, and that use does not, under the limitations we have specified, result in any greater draft upon the liver than if the water had been directly applied to land at the time of diversion.
It is also urged that no decree of the character directed should be entered until all the- parties whose rights might be affected thereby are before the court. No question of that character was suggested at the original hearing, and it will not be considered on an application for a rehearing. Besides, we do not believe appellee is in a position to urge that question. Appellee instituted the action from which this appeal was prosecuted, making the appellant the only *391party. The purpose of the action was to prevent the appellant from diverting the water represented by its purchase during the irrigation season for storage as against the appellee, and hence, it is not in a position to now contend that the rights which it now seeks to have determined as between the appellant and itself should not be adjudicated without the presence of other parties whose rights might be affected by such adjudication.
Counsel amici curiae also say (quoting from their brief):
“Many members of the legal profession, and many irrigators, contend that this decision enables the holder of old decrees for excessive priorities— decrees obtained in the early days, when water rights were not so valuable as now, nor so carefully guarded — to successfully assert that the full amount of water decreed may be now used, notwithstanding that but a portion of it has ever been heretofore used. They maintain that the old priorities, whether used or not, are recognized by this decision to such an extent that the owners of those priorities are, as against even subsequent appropriators who have; used the water for years, entitled to now utilize it upon lands described in the decree, or other lands owned by them.”
Such a ease is not before us, but we can only say that we fail to comprehend wherein the opinion is susceptible of such a construction. It would be impossible, in any one opinion, to determine all the questions which may arise with respect to water rights. Each case of this character must depend upon its own particular facts.
A majority of the court is of opinion that the petition for rehearing should be denied, and it is so ordered. Rehearing denied.