The opinion
On Petition for Rehearing.
Per Curiam.
In support of the petition for a rehearing, counsel for appellees insist that “ the subject-matter of the action is not an easement or a freehold of any kind or nature,” and that to “ constitute an easement in freehold it must be inseparably annexed to, or appurtenant to, the estate of complainant.” That a valid appropriation of water from a natural stream constitutes an easement in that stream, and that such easement is an incorporeal hereditament, the appropriation being in perpetuity, cannot well be disputed. Washburn in his work on Easements and Servitudes, in discussing the question of property in water, at page 276, says :
“ As forming the subject of property, in connection with the realt3r, water may be viewed in two lights, — one as constituting one of the elements of which an estate is composed, and giving, by its qualities and susceptibilities of use, a value to such estate ; the other, as being valuable alone for its use, to be enjoyed in connection with the occupation of the soil. In the latter sense, it constitutes an incorporeal hereditament, to which the term easement is applied.”
Angelí on Water Courses, sec. 141, uses this illustration:
“If a miller, or manufacturer, purchases the land itself, over which the water runs, it is evident he would then have a corporeal tenement, and the right which he would possess, in respect to his water course, would be real; but if he *316 should purchase a water privilege, or a portion of water power, without any part of the bed of the river, he, in that case, would gain an incorporeal hereditament, or easement.”
The right acquired to water by an appropriator under our system, is of the same character as that defined by the foregoing authorities as an incorporeal hereditament and easement. The consumer under a ditch possesses a like property. He is an appropriator from the natural stream, through the intermediate agency of the ditch, and has a right to have the quantity of water so appropriated flow in the natural stream and through the ditch for his use.
The argument of counsel for appellee seems to us more a criticism upon the use of the word easement in this connection, than an answer to the ultimate conclusion we announced as to the nature and extent of complainant’s estate or property. They say: “It is not sufficient for the purposes of this action that the complainant be a part owner in the ditch, which of course is real estate, or even to own a light therein of an incorporeal nature ; but to constitute such right an easement it must be such an interest as will pass by a conveyance of his farm, as an appurtenant thereto, without further description thereof.”
And yet it may be said that a water right does come strictly within the definition given by counsel of an easement, except that its source of supply and place of use may be changed. The natural water course, or the ditch, occupies the relation of the servient estate, and the very existence of a water right requires a use which constitutes the dominant estate.
We cannot agree with the proposition that because a water right is susceptible of being changed from one tract of land to another, or its source of supply changed from one point of a natural stream to another, it is any less an easement in the stream, than if it always retained its original point of diversion and place of application. A change of the place of diversion or the place of use does not affect this right either in character or extent.
But the correctness of the conclusions we arrived at.de *317 pends not so much upon the technical use of terms as upon the substantial right of complainants, which seems to us to be clearly a right incorporeal in its nature, that by its duration constitutes a freehold, and that this action relates to such freehold.
Upon a careful consideration of the other points so forcibly and ably presented by counsel for appellees, we are still of the opinion that our views thereon, as expressed in our former opinion, are correct, and the petition for rehearing is denied.
Denied.