dissenting.
It is manifest that the rights of plaintiff in error depend upon whether the water in question is a tributary and a part of the flow of the river. The majority opinion can only be sustained upon the assumption that it is a tributary and belongs to the natural flow of the stream. I think, under the evidence, that the disputed water is extraneous to the *446natural or regular flow of the stream, which was only being used as a conduit. Plaintiff does not claim a priority, but seeks recognition from the court and water officials of its rights to the water and the use of the stream as a conduit for its distribution. The majority opinion denies this right and holds that it will destroy the value of old ditch priorities. From this part of the opinion I dissent.
The majority opinion is based upon Comstock v. Ramsay, 55 Colo. 244. The law as announced upon the statement of that case necessary for its decision is undoubtedly correct, and has always been the undisputed rule in this state; no one claimfe the contrary, although there are some expressions and dicta in that opinion which might have been omitted with propriety. It in fact decided but one point, namely, that a junior appropriator cannot divert the water of a tributary to the detriment of a senior upon the main stream. The court in that case, at page 256, says: “What and all we do intend to here determine, on this particular point, is that where it appears that such waters are in fact tributary to the stream, and form a substantial and material source of its supply, upon which appropriators therefrom have long depended for water to satisfy their priorities, that then, as between such bona fide appropriators and users of such waters and a new claimant, the former has the first and better right.”
With that I think every irrigation lawyer in Colorado can agree. No one claims here that a junior appropriator can take the water of a tributary to the detriment of a senior upon the stream. What I deny in this case is that the impounded water flowing in this seepage ditch at the base of the dam ever became, under the facts and circumstances of this case, a natural watercourse, or a part of the natural flow, or a tributary of the river.
I lay down, as the first point in the discussion, that water which one has saved, developed or produced, or which comes from an independent or extraneous source to the natural irrigation flow of the stream, and has been put into the river as a conduit by the producer or owner for *447the purpose of taking it out and using it lower down the stream for irrigation, belongs to the one who put it into the stream as against all priorities; or, put in a way already expressed by this court, one who by his own efforts, increases the natural flow of a stream either by saving or developing water is entitled to its benefit to the extent of the increase as against all consumers, regardless of priority. The right is not based upon priority, and the stream is only used as a canal or conduit. This rule is sustained without an exception by every authority in every irrigation state. Platte Val. Irr. Co. v. Buckers Irr. M. & I. Co., 25 Colo. 77; Ripley v. Park Center L. & W. Co., 40 Colo. 129, 133; Ironstone D. Co. v. Ashenfelter, 57 Colo. 31, 42, 43, 44; McKelvey v. N. S. Irr. Dist., 66 Colo. 11, 179 Pac. 872; Churchill v. Rose, 136 Cal. 576; Pomona L. & W. Co. v. San Antonio W. Co., 152 Cal. 618, 623; Miller v. Wheeler, 54 Wash. 429; Schulz v. Sweeny, 19 Nev. 362. Our statute expressly confers this right to the use of the stream.
In the Buckers case, 25 Colo. 77, it is expressly held that one who increases the average continuous flow of a stream by his own energy and expenditure is entitled to the increase, and the use of the stream as a conduit, as against all. other consumers on the stream, regardless of their priority. This case has never been modified unless it was intended to silently overrule it in the Ramsay case. It has often been followed and quoted in other states and is authority that one is entitled to the increase to the natural flow which he put into the stream with the intention of taking it out for irrigation use. The three Buckers cases, 25 Colo. 77, 28 Colo. 189, and 31 Colo. 62, involve the same water. Beaver lake was an old bed of the river and Beaver brook was its outlet, and adjacent sloughs caused by seepage from irrigation were the source of supply of Beave.r lake and of Beaver brook, the latter being a natural watercourse and a tributary of the Platte river. The Buckers company constructed Beaver lake ditch, a seepage drain ditch, which intercepted and diverted the water from Beaver brook. It claimed the use of the water as against *448prior appropriators upon the main stream (the Platte river) upon the theory that it had developed the water by draining adjacent lands, and had thus increased the natural flow, and was entitled to the increase. The lower court found on the first trial (reported in the 25th Colo.) that Beaver brook was a natural watercourse, and that the Buckers company had increased its natural flow by the drainage of seepage lands adjacent thereto, and therefore was .entitled to all the water flowing in Beaver brook. Mark the word “all”. The case was brought here and reversed upon the; ground that the court erred in giving the Buckers company all the water of Beaver brook. We held, Beaver brook being a natural watercourse and tributary of the Platte river, the company was not entitled to all the water as against senior appropriators, but expressly held‘that it was entitled to the use of the water in dispute to the. extent that it had increased the natural floto. The error of the lower court specifically pointed out, and, for which the case was reversed, was in giving it all the water, both that which it claimed to have developed as well as the natural flow of the stream. For this error the judgment was reversed and case remanded and a retrial had which was reviewed by us and reported in the 28th Colo. where, at page 189, it is said: “From this judgment (that is the former judgment giving defendants all the water) the plaintiff appealed to this court, where, upon consideration of this branch of the case it was held that the court erred in decreeing the present appellants (the Buckers company) all the water from this source, because they were only entitled to the water flowing from Beaver lake to the extent they had increased its average continuous flow.” So, we see, in the 28th Colo. we expressly reaffirmed the rule theretofore so strongly pronounced in the 25th Colo. In the syllabus in the 28th Colo., at page 187, it is said, in speaking of the case in the 25th Colo.: “The appellate court sustained the lower court to the extent that such junior appropriators (the Buckers company) were entitled to the increase of water they had caused to flow in the *449stream, but reversed the judgment because it decreed them all the water in the stream instead of only the increase and the cause was remanded for a new trial,” for this reason. On the third trial over the same 'water the lower court found on conflicting evidence that there had been no increase of the natural flow; that the apparent increase was only a concentration of the water present in the sand and gravel, forming the natural channel, and the banks adjacent thereto; that the Buckers company had added no water to the natural flow, but had simply intercepted the natural surface flow in the channel, and the water saturating the sand and gravel constituting the bed and banks of the channel, which amounted to a diversion of the surface and subterranean flow of the natural stream; that, for this reason, the water they claimed to have developed, was not-an increase, but was in fact taken from the stream itself. This finding of the lower court was affirmed in 31 Colo. 62,. but it accentuates the rule theretofore announced and in no way abrogated, modified or changed the former decisions. The case adheres to the rule of law1 announced in the two former cases, that one who increases the natural flow of a stream is entitled to the increase.
Where one, by his own energy and expenditures, with the intention of using it for irrigation, adds to the natural flow of a stream, it does not become a part of the natural flow and such water though commingled, to distinguish it from the natural flow, has been given various names by the courts, such as, “the increase,” “independent water,” “artificial water,” “developed water,” “saved water,” “excess water,” “new water,” “free water,” “water from an extraneous source,” “artificial accretion,” etc., but whatever the name, and whether saved water or developed water, it is universally held in all the irrigation states, that the one saving or developing it and adding it to the stream has a right to its use, and the use of the natural stream for its distribution, and to divert therefrom an equivalent amount for irrigation. This principle was announced by the Supreme Court of California as early as Butte Co. v. *450Vaughn, 11 Cal. 143. In Creighton v. Kaweah C. & I. Co.. 67 Cal. 222, it is said: “At best the plaintiff would be entitled only to have the defendant enjoined from obstructing the flow of that which would have naturally flowed, unaided by artificial means, with which the plaintiff is not connected.”
The mater is fully discussed in Wiggins v. Muscupiabe L. & W. Co., 113 Cal. 195, where the right of one to its use who either saves or develops water by artificial means is elaborately considered. In Churchill v. Rose, 136 Cal. 576, it is held that where one increases the natural flow of a creek, he is entitled to the increase as against all other appropriated. In Pomona L. & W. Co. et al. v. San Antonio W. Co. et al., 152 Cal. 623, the whole matter is again reviewed, and many cases cited, and among others the Ruckers case, and it is held that such water, unless abandoned, does not become a part of the natural flow of the stream, and belongs to the person causing the increase. In closing the court says, at page 624: “This same doctrine is recognized by all the courts which have been called upon to consider it.”
In LaJara v. Hansen, 35 Colo., at page 109, it is said: “After waste waters reach the stream, unless there is then an intention by the owner to reclaim them, they become a part of its volume, and inure to the benefit of the appropriated of its waters, to be enjoyed in accordance with their numerical priorities.” In Ripley v. Park Center L. & W. Co., 40 Colo., at page 133, we held, that artificial water, that is water produced or developed from a source extraneous to the natural flow by the efforts of others, and put into the stream as a conduit for the purpose of taking it out and using it lower down for irrigation, belongs to those causing the increase, and is no part of the natural stream unless abandoned. In Comstock v. Ramsay, 55 Colo., at page 256, it is said: “When such waters leave the control of the original appropriator, having been used either for direct irrigation or reservoir purposes, without intention of recapture or further use, by him, they immediately become *451a component part of the river, and cannot be lawfully diverted from their course to it by independent appropriation, to the injury of those having decreed priorities therefrom.” In the present case there was an intention to recapture and further use. Of course after any water reaches the stream, unless there is an intention by the owner to reclaim it, it becomes a part of the natural flow of the stream, but what Í contend is, if it was put in with the intention of taking it out and using it, it belongs to the person causing the increase.
In the fourth paragraph of the syllabus to the Ashenfelter case, 57 Colo. 31, it is said: “Whoever has developed water from a source extraneous to the stream may discharge it into the stream, and, using the stream as a conduit, withdraw it below.” In McKelvey v. North Sterling Irr. Dist., 66 Colo. 11, 179 Pac. 872, it is said in the first paragraph of the syllabus: “Water seeping through a dam may be recaptured (by the owner) by means of an irrigation ditch and other persons have no right to appropriate it.” This is an exact parallel of the instant case, and yet no mention is made of it in the majority opinion.
In Miller et al. v. Wheeler et al., 54 Wash. 429, a recent and well considered case, concurred in by the full bench, it is held, where one, by his own exertion, energy and expenditure, increases the natural flow or available supply of water in a stream, he has the right to its use to the extent of the increase, and may use the stream as a conduit for its distribution. This is a leading ease and similar in many respects to the Buckers case, which it cites and follows. In that case seepage water caused from irrigation formed bogs and marshes on defendant’s land, and the act complained of by plaintiff was the digging of a ditch and draining the marshes into the natural stream, which defendant used as a conduit, and taking the equivalent therefrom for irrigation as against plaintiff, a senior appropriator on the stream. At page 433, the court says, the question is: “Whether the water from this artificial source (irrigation), having naturally gravitated into the *452soil, and percolating therein, may be ditched and drained for further use by the owners as against the right of a lower appropriator; in other words, whether percolating waters arising from an artificial source become a natural flow of an existing watershed and a part of its drainage stream.”
The court, in answering this direct question, says, that it may or may not, according to the facts in each particular case, depending upon the question of abandonment, but the court holds that the seepage water developed by drainage in that particular case, there being no abandonment, did not become a part of the natural flow of the stream, and that the parties causing the increase were entitled to its use, as against ali other consumers on the stream. No question of priority involved. It reviews many cases and upholds the universal rule that one is entitled to divert the amount he has increased the natural flow as against all prior appropriators on the stream. The artificial means of increase in that case was the drainage of lands seeped by irrigation, and the court held that this water, under the circumstances of the case, was not a natural flow of the stream, but increase. The above cases have been cited for the purpose of showing the established rule that one who increases the flow of a natural stream is entitled to the increase.
The second point is whether the conditions above mentioned are met. That is, whether plaintiff increased the natural flow of the stream without any intention of abandoning the increase.
Whether waste water escaping from a reservoir is a tributary where no tributary existed before the construction of the reservoir depends upon the facts and circumstances of each particular case. There was no abandonment of the water in this case. On the contrary, the evidence shows an intention to recapture and use the escaping water, so the element of abandonment is eliminated, and the case must be decided upon the theory that there was an intention to recapture and use the escaping water.
*453The evidence shows plaintiff saved and added to the stream a volume of water not theretofore wont naturally, or at all, to flow down the stream at that time and place. It diverted, stored, and saved unusued and unappropriated water which, had it not done so at the time, would have gone out of the state and been lost to everyone for direct irrigation. Hence I say it was water saved by plaintiff at a time and place when no appropriator for direct irrigation had any interest in it. For this reason, it was immaterial to those having decreed priorities of appropriation for direct irrigation what became of the water plaintiff impounded for it was saved at a time when in no event could they have used it. What I mean is, the water plaintiff saved from being lost came into the reservoir from a source extraneous to the natural irrigation flow of the stream, and the escaping water was an artificial increment to the stream over the natural flow and belongs to the one who saved it. The point I wish to make is that water saved, which would be otherwise lost,’ belongs to the one who saves it. I think the owner may, in constructing a reservoir, in anticipation of leakage, construct a drain ditch or ditches below the dam to recapture escaping water, and has the right to apply it to the same beneficial use as the water within the reservoir as against' all appropriators on the stream when his intention to do so is manifested in due time. The water stored in a reservoir does not depend on any rule of priority except as to filling, but is water saved, and .the right to its use belongs to the one who saved it.
It simply goes back to the first proposition that one who increases the natural flow by saving water that otherwise would be lost is entitled to the increase. The fact that this water was stored is proof sufficient that it would not have been saved, but would have gone down the river into the Gulf of Mexico, except for the energy and expenditure of plaintiff. No rights ever accrued to others in anticipation of this water. Its use was never available nor anticipated for direct irrigation prior to the construction of *454the reservoir, and no right was ever founded upon it. It is as much saved water to which plaintiff had the right as though it had been drawn directly from the reservoir for the purpose of putting it into the stream for transportation.
It has been suggested that the water escaped from the reservoir against the will of the owner, therefore he is not entitled to recapture it. But why should that make a difference, if the intention to recapture it was the same as the intention to recapture water voluntarily released from the reservoir? It seems a strange doctrine that one cannot recapture his property that has involuntarily escaped.
In the majority opinion it is stated: “Every appropriation of water on the stream, claimed and decreed for irrigation purposes, has been so claimed and decreed upon the theory that all waste and seepage water arising from the irrigation of land, or from' the construction and maintenance of reservoirs using water from the river, and naturally returning to it, is available to supply such appropriations and decrees.” No doubt all decreed priorities of appropriation on a natural stream are based upon the theory that the flow of the stream and its tributaries from any source that has become an integral part of the stream shall inure to the benefit of all appropriators on the stream in the numerical order of their priorities. But I deny that any appropriation or decree is made or based upon the theory that independent or extraneous water, or water that has been saved in a reservoir, and is being conveyed for distribution, using the stream as a conduit, will inure to the benefit of any priority or to any person except the one who saved it.
In the third paragraph of the Ashenfelter ease, 57 Colo. 31, it is said: “Seepage water which is being wasted is the subject of appropriation. The appropriation thereof .is not included in or controlled by a prior adjudication decree in the same district.”
*455If the majority opinion intends so to state, it is a grievous misstatement to say that prior appropriators on this stream long depended, or ever depended, upon this .dis-. puted water to satisfy their priorities. It was saved to the stream long after their rights accrued.
The majority opinion states that the question is, “whether the capture of seepage water by the Santa Maria ditch can be regarded as such an original appropriation as to entitle it to a decree prior to all other appropriators on' the stream to which seepage is tributary.” This does not state the question correctly. In fact, I do not see how it could be stated more incorrectly. No such claim is made and no such question is involved. What plaintiff claims is recognition of the right it already had to use the impounded water in dispute, regardless of priorities, upon the theory that it is excess or increase which it produced and put into the stream without any intention of abandoning, but as a conduit for transportation, with the intention of taking it out and using it lower down for irrigation.
The majority opinion further states: “If such act of capture and diversion can be upheld as lawful and proper, by the same reasoning a new claimant could divert the waters of a surface tributary, if he only be spry enough to capture and divert them before they actually reach and mingle with the waters of the main stream.” This is begging the question. Plaintiff is not diverting the water of a tributary, or claiming the water by virtue of priority of appropriation. It only asks the right to take the increase it saved and put into the stream. It asks no part of the natural flow. This water is not a tributary in the sense that it is a part of the flow of a natural stream. All that plaintiff needs or seeks is recognition by the police officers on the stream of its right to the use of the water it saved, and the use of the stream as a conduit, and it is proper that the courts should grant such recognition in an adjudication proceeding, as a guide to the water officers. This course was pursued in McKilvey v. N. A. Irr. Dist., 179 Pac. 872. I think the case should be reversed *456and remanded to the lower court to enter a decree in the adjudication proceeding in accordance with the views I have herein expressed.