concurring.
For the reasons stated in the principal opinion and in this opinion, I concur in the reversal of the judgment.
On October 1,1888, certain landowners commenced the construction of the reservoir involved in this suit. They completed the reservoir with diligence and applied the water to the irrigation of growing crops on their land. They thereby made a valid appropriation of unappropri*513ated water for irrigation purposes to the extent of 2,083 acre feet, and acquired a vested right of which they could not be deprived by subsequent appropriators or by any act of the General Assembly. After making such appropriation, they incorporated a mutual reservoir company, the relator herein, and conveyed to it the reservoir and their water rights pertaining thereto. Thereafter, up to the present time, the water has been used by the stockholders for the irrigation of their lands. In 1907, in a general adjudication proceeding, the court decreed to the company priority as of October 1, 1888, for 2,083 acre feet of water for the purpose of irrigation.
The principal question for decision is whether appropriators having appropriations of later date, in other words, junior appropriators — and there are many of them — are entitled to use for irrigation purposes the water theretofore appropriated for irrigation purposes by the predecessors of the company and confirmed to the company by decree of court in the adjudication proceeding.
1. The contention of the defendants in error is based upon the following provision in section 38 of Session Laws of 1879, page 106, appearing in Compiled Laws of 1921 as section 1682: “Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take from any of the natural streams of the state and store away any unappropriated water not needed for immediate use for domestic or irrigating purposes.”
Where a statute reasonably admits of two constructions, one harmonizing the act with the Constitution, the other bringing it into conflict therewith or raising a reasonable doubt of the constitutionality of the act, the former construction should be adopted by the court.
The Territorial Legislature passed two acts to prevent waste of water. The Act of 1872, amending* chapter 45 of Revised Statutes of 1868, made it unlawful to permit 'more water to run in a ditch than is necessary, and pro*514vided that when water is not needed for irrigating purposes it should not be allowed to run in the ditch. The Act of 1876 (S. L., p1. 78) made it unlawful for any person to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land and for domestic and stock purposes. There are times, for instance in flood time, when more water is available than is needed by the appropriators. With knowledge of that fact and of the Acts of 1872 and 1876, the G-eneral Assembly of 1879, it is not unreasonable to suppose, intended by the provision now under discussion that an owner of a reservoir for irrigation purposes shall have the right to take and store unappropriated waters, and also waters that already have been appropriated by others but that are not at the time needed by such prior appropriators for immediate use for domestic or irrigation purposes. Such storage would save the water from going to waste, a most desirable object in this “dry and thirsty land,” where every drop of water is sorely needed. Such a construction would save the statutory provision from coming into conflict with the Constitution, and I believe that such construction is permissible.
The trial court said: “The water officials of the state have always given force and effect to the statute as meaning that a senior or any reservoir appropriator for agricultural purposes may not store water at a time when it is needed for immediate use by a junior direct appropriator of water.”
The case was decided on demurrer to the alternative writ of mandamus, and I find nothing in the record to sustain that statement of the trial court. The attorneys are not in agreement as to the construction given to the provision by the various water officials in past times, but it is admitted that during at least four years (1897,1898, 1913 and 1914) the state engineer’s rulings were not in harmony with the views expressed by the trial judge. We would not be justified in stating broadly, as a matter *515of which we can take judicial notice, that the practical construction by the water officials has been as stated by the trial court. Some of the officials have so construed the provision, but, as we have seen, the construction has not been uniform.
2. If the provision now under consideration means what the defendants in error say it does, it has been repealed by implication by the Acts of 1881 and 1887.
The former act (S. L. 1881, page 142, et seq.), provides for adjudicating water rights for irrigation purposes. Without analyzing the several sections, it may be said that the act recognizes that appropriations of water for irrigation by means of a reservoir and appropriations of water for irrigation by means of ditches are upon an equality, and that they shall have priority according to the dates of the respective appropriations, without any distinction between the two methods of accomplishing the purpose of the appropriation, namely, the application of the water to the soil. The adjudication proceeding culminates in a decree, which the act provides “shall further number each several appropriation of water consecutively, beginning with the oldest appropriation, without respect to the ditches or reservoirs by means of which such appropriations were made.” (Italics are mine.) Section 37 repeals all laws and parts of laws inconsistent with the provisions of the act.
The inconsistency of the 1879 provision with the Act of 1881 is obvious.
The Act of 1887 (S. L. 1887, page 295, et seq.) requires (section 2) that the superintendent of irrigation shall “execute the laws of the state relative to the distribution of water in accordance with the rights of priority of appropriation, as established by judicial decrees.” (Italics are mine.) See also section 9. Section 10 provides that if the division superintendent of irrigation shall ascertain that “any ditch, canal or reservoir of any other district of his division is receiving water to which *516any ditch, canal or reservoir of any other district is entitled, he shall at once order the shutting down of the post-dated ditches, canals or reservoirs, and the water given to the ditches, canals or reservoirs having the priority of appropriation.” (Italics are mine.)
The provision of the 1879 Act is inconsistent with these provisions.
The provision of the Act of 1879 under consideration in this proceeding* is so inconsistent with the Acts of 1881 and 1887 as clearly to he repealed by implication.
3. If the provision in question were capable of no construction other than that contended for by the defendants in error, and if it has not been impliedly repealed by subsequent legislation, it is in conflict with the Colorado Constitution and therefore is void.
Section 5 of article XYIprovides: “The water of every natural stream,'not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
Section 6 of the same article provides: ‘ ‘ The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between. those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing* purposes.” (Italics are mine.)
The appropriation made by the predecessors of the Reservoir Company and confirmed in that company by decree in the adjudication proceeding was for agricultural purposes and the appropriations made by the ditch owners were for agricultural purposes. The appropria*517tion by tbe former was prior to tbe appropriations by tbe latter, and as all are using the water for tbe same purpose, namely, for tbe irrigation of agricultural land, under the clear terms of tbe Constitution tbe former bas tbe better right.
Tbe Constitution makes no distinction between appropriations based upon tbe means or instrumentality employed to convey tbe water to tbe land. Tbe use of tbe water for agricultural purposes is tbe end in view; reservoirs, canals and ditches are merely tbe means or instrumentalities whereby tbe appropriator applies tbe water to tbe irrigation of agricultural land, that being tbe purpose for which be appropriated tbe water. Within tbe meaning of tbe constitutional provisions quoted above, there is no such thing as a “reservoir purpose,” a “storage purpose,” a “canal purpose,” or a “ditch purpose. ’ ’
When tbe predecessors of tbe Reservoir Company made their appropriation, they did so knowing that tbe Constitution expressly made their rights subordinate to tbe rights of prior appropriators. When later appropriators appeared, they bad full knowledge of tbe existence of tbe prior appropriations, including tbe appropriation made by tbe predecessors of the Reservoir Company. They went upon tbe stream with their eyes open. They ran tbe risk, which all subsequent appropriators run, of having their supply diminished if, by reason of an insufficient supply of water, there is little left after tbe lawful requirements of prior appropriators have been satisfied.
4. It is suggested that, as tbe relator is a corporation, its rights as such are limited by section 2355 of Compiled Laws of 1921 to storage of water “when not needed for immediate use.” That provision is capable of tbe construction given in this opinion to tbe provision in tbe Act of 1879. That tbe purpose of section 2355 is to permit reservoir corporations to store water of which it bas not made an appropriation — water already appropriated by others, but not then needed for immediate use — -is made *518clear by tbe concluding words of the section: “but this shall not be construed to prevent the appropriation and use of any water not theretofore utilized and applied to beneficial uses.” The act, of which section 2355 is a part, relates to corporations organized for the purpose of constructing ditches, reservoirs, etc. C. L. 1921, section 2353.) The relator corporation was not organized to construct, nor did it construct, a reservoir. The reservoir had already been constructed by landowners, who had made a valid appropriation of water for irrigation purposes, and who organized the corporation as a mutual reservoir company to take over the reservoir and their appropriations solely for their benefit. Mutual reservoir companies are organized, not for profit, but for the convenience of their members in the management of the irrigation system and in the distribution to them of water upon their lands in proportion to their interests. Ownership of the shares of stock therein is but incidental to ownership of the water right. Ireton v. Idaho Irrigation Co., 30 Idaho 310, 317, 164 Pac. 687; Kendrick v. Twin Lakes Reservoir Co., 58 Colo. 281, 144 Pac. 884. And see concurring opinion in Comstock v. Olney Springs Drainage District, 97 Colo. 416, 50 P. (2d) 531, in which the majority of the justices joined.
5. In the dissenting opinion in Fort Morgan Reservoir & I. Co. v. McCune, 71 Colo. 256, 272, 206 Pac. 393, is the following statement of the place that storage rightly occupies in the agricultural development of the • state: “* * * the future of the state rests largely upon agricultural development, and this in turn upon irrigation by storage. The waters of the state have been so generally appropriated that the day of direct irrigation enterprises is closing, while that of storage has scarcely more than dawned.”
If the appropriators of water- for the purpose of agriculture who, with a view to the economical and effective use of the water, resort to storage in reservoirs constructed at great expense, may be deprived of their pri*519orities by those who later — it may be many years later— make appropriations of water for the same purpose, bnt who employ the less economical and less effective method of irrigation by means of ditches only, then, truly, for storage enterprises the sun is not a rising, but a setting, sun.
6. I conclude:
1. That the provision of the Act of 1879 (C. L. 1921, section 1682) does not mean what the defendants in error claim it does;
2. That if it does mean that, it is clearly inconsistent with the Acts of 1881 and 1887, supra, and therefore has been repealed thereby by implication;
3. That if the provision means what the defendants in error claim it does, and if it has not been repealed by implication, it is unconstitutional and therefore void;
4. That section 2355 of Compiled Laws of 1921, relating to reservoir corporations, does not limit the powers of the relator in the manner claimed by the defendants in error; and
5. That, for the reasons stated above and in the principal opinion, the judgment is properly reversed.