OPINION OP THE COURT.
POPE, J.
1 2 3 (After making the foregoing statement of the case). The question standing at the very threshold of this controversy is, what was the understanding under which the ditch whose course it is now sought to change was laid out? The pleadings upon this point are very meager. The answer alleges simply that the ditch in question was established and constructed about the year 1875 for the purpose of supplying water for the irrigation of the lands within reach thereof, belonging- to and cultivated by the owners of water rights in said ditch and that it has ever since been and is now managed, operated and maintained in accordance with the territorial laws regulating community ditches. We are not informed by the pleadings as to any. specific terms and conditions under which the ditch was built and we are remitted to general understanding and local custom for the ascertainment of the meaning of the term community ditch as here used. Indulging judicial notice upon this point to the extent permissible and viewing the allegations in the light of local custom we conclude that this initial transaction was as follows: “In 1875 there were at or near the towns of Colorado and Santa Teresa, in Dona Ana county, a number of owners of land, among them the plaintiffs or their predecessors in the title of the tracts here involved; that said owners recognizing the comparative worthlessness of their lands unless watered,' agreed among themselves to construct by joint energv and joint capital the ditch in question, running along the course it had prior to the change now complained of; that such course was the result of mutual agreement and mutual concession, designed to yield the best results to the community as a whole and to each of the land-holders in the cultivation and improvement of his particular holding; that subject to a possibility to be hereafter discussed, the arrangement thus made and the course of the ditch thus agreed upon was to be for all time, unless modified by mutual and unanimous agreement; that relying upon this arrangement and the permanence of the ditch thus established by the community effort, each of said land-holders proceeded to cultivate his tract, and in some instances to place upon his holding improvements representing the sum total of his earthly belongings. The result of this arrangement, which is a part of the local history of every community ditch in this Territory, was to invest each tract of land held by the holders of this ditch, with a certain valuable appurtenance, to-wit, a ditch running through or near it upon definite course, delivering a certain amount of water at a cost to said owner of a certain justly proportioned amount of fatigue work, toward the maintenance of said ditch. The land, of course, was property of the highest kind, but equally was the presence of the ditch and the yielding from it of a certain fixed amount water property, for it was the -presence of this ditch and the presence of this water that made the land of value and differentiated it from millions of acres of comparatively valueless laud iu the arid West. Each owner under this mutual arrangement continued to enjoy the possession of his property and of its appurtenant water until April 18, 1903, when the ditch commissioners decided that the ditch shall no longer run where it ran before, but that for six miles of its length it shall run about a half a mile-from the old course and thus through an entirely different series of tracts of land from that over which it was originally laid out. The effect of this is to change materially the water facilities appurtenant to the tracts in the strip of six miles along the old ditch. These tracts, instead of being watered from the old ditch maintained by the-community, must now be watered either from the old ditch maintained as a lateral at the expense of the owners in-the six mile strip or by laterals run at great expense from the new main ditch. The effect of this is to place upon the owners of these tracts a burden which they did not have under the original agreement; if they irrigate from the old ditch it must be by keeping that ditch up at their own expense, meanwhile contributing to the new; if they irrigate from the new ditch it can only- be by building-new laterals, if perchance they have the means to build and maintain such. If they are without means to maintain or construct such laterals they are forced to the comfortless alternative of getting along without any water at all. The effect of this in its most favorable alterna* tive is directly to increase the burden upon the tracts-worked by them or stated conversely to diminish directly the value of those tracts by diminishing or taking away that which alone gives value to the land. To do this in effect is to ignore the mutual agreement originally entered into between 9II the parties fixing the ditch upon a definite course; it is to take way to a certain extent the-value of property which has been improved in reliance upon that agreement. Each of these being done against the will and over the protest of the plaintiffs, who were-parties or privies to the original agreement creating the community and are owners of the property whose value it is thus sought to dimiuish or destroy, can this action on the part of the commissioners be upheld in due regard to-the sanctity of contract; Can it be harmonized with the constitutional provisions against the taking of property without due process of law? Let us see what justification the defendant commissioners offer for their action. We shall first consider the matter upon the same basis as is disclosed by the petition of the majority owners to the meeting of April 18, 1903, that is to say, without reference to the presence of any difficulty in maintaining the ditch on account of floods. Defendants in the first jilace allege in brief that their resolution making the change was upon the petition of a majority of the interests in the ditch, who, at the meeting called for that purpose, voted for such change. Do these facts justify the action complained of ? We think not. We find nothing in the pleadings nor in the custom of community ditch organizations to justify the conclusion that the will of the majority of the interests on a given ditch can, over objection of those affected thereby, arbitrarily change its course, or otherwise modify the agreement which placed it at a particular point. If it takes two, or three, or ten to make a bargain, it takes equally that number to abrogate one. There is nothing in the fact that plaintiffs or their predecessors by unanimous understanding entered into a community to build a ditch upon a certain course, to justify the conclusion that such an agreement carried with it the power on the part of the majority to take away the ditch from the lands of the minority and run it across entirely different lands A mutual contract would have little value if it conferred upon a majority of its participants the right to vary its terms at any time, without regard to the wishes of all concerned If a contract possesses any sanctity that sanctity is invokable for the protection of all parties, to it. By entering into such an agreement the owner of land cannot be presumed to have abdicated to a majority of his associates the power to take awav from him all of the benefits flowing from such contract and to have vested in others the power to ruin him. If the power here claimed for the majority existed, it existed equally to change the course of the ditch, not only beginning at a point five miles from its intake, but also from a point immediately at its intake. That power nice conceded becomes a power to divert it from its ;ourse not only for a distance of six miles but for the whole length of the ditch; to cause the new course to be not only a half mile from the old ditch, but as many miles as the will of an arbitrary majority may decide. True, any such action would still leave the owners of the tracts the privilege of constructing,' if topographical conditions permitted, miles of laterals at their own expense to conduct water to their lands, or what is the same thing, to maintain miles of the old ditch for that purpose; true, the majority do not confiscate the water belonging to the minority, they simply destroy or render prohibitively expensive the means of conducting the water to the lands of such minority; true, they do not say, you no longer have any water rights/ they simply say: Tiere is Amur Avater; come across these intervening miles, tunnel these intervening hills, bridge these inter-A-ening arroyos as best you can and take it/ We are unable, however, to distinguish between a confiscation which i< effected by direct act and that effected by prescribing conditions impossible of fulfillment. If majority landowners may do this, they thereby annul tbe original agreement, by which in consideration of plaintiff’s and in constructing this ditch, the water was to be held for his use, not miles away, whether he be financially able to go and get it or not, but was to be delivered at the very door step constructed in reliance upon the mutual compact and upon tbe very land for whose improvement the ditch was constructed. As we have before said, we cannot find anything in the allegations of the answer, or in the customs connected with the organization of community ditches that leads us to conclude that by going into sucb project originally the plaintiffs or their predecessors in title or either of them surrendered the right to direct his own affairs and to control his OAvn property; or that he pooled all his properly rights with his associates in the community in such a way as to give a fickle or perhaps tyrannical majority absolutely the power to take away that which renders his holding valuable. We are of opinion that under that system he remained as any other citizen vested with full rights of property, sacred against any alienation except by his consent or by due process of law.
4 It is contended, however, that conceding it to be true that these were the conditions under which the water interests were held from the organization of the acequia in 1875, and for some years subsequent, this was all changed by the legislation of 1895, making community acequias corporations and investing in three commissioners elected by a majority of the interests in the ditch, the full control of the affairs thereof, and in a mayordomo, similarly elected, the discharge of the executive duties thereof. (C. L. Sec. 8, et seq.)
' This involves a consideration of the act of February 28, 1895, for the first section of that act, (C. L. Sec. 8) provides:
“All community'" ditches or acequias, now constructed or hereafter to be constructed in this Territory, shall for the purpose of this act be considered as corporations or bodies corporate, with power to sue or to be sued as such.”
Section 2 provides (C. L. Sec. 9), that the officers of such community ditches shall consist of three commissioners and one mayordomo or superintendent, each of whom shall be the owner of an interest in said ditch or the water therein. By Section 3 (C..L. Sec. 10) at elections for these officers only those having water rights in the ditch shall be allowed a vote; but votes may be cast by written proxy and shall be in proportion to the interest of the voter in the ditch or water, or in proportion to the number or amount of his water rights. Section 4, as amended by Chapter 44 of the Session Laws of 1897, (C. L. Secs. 11), and Chapter 44, Sec. 1, of the Laws of 1903, is as follows:
“The commissioners shall assess fatigue work or task of all parties owning water rights in said communitv ditches or acequias, and shall have power to contract oY be contracted with and also to make all necessary assessments to provide funds for the payment of the salary of the mayordomo and other legitimate expenses incident to the proper conduct and maintenance of the acequias under their charge, and also to make contracts for obtaining water for irrigating purposes in connection with their ditches, such contracts to be ratified by a vote of a majority of the owners of water rights in said ditches, and shall have general charge and control of all affairs pertaining to the same, together with the power to receive money in lieu of said fatigue or task work at a price to be fixed by them, and shall, immediately upon taking office, provide by-laws, rules and regulations not' in conformity with the laws of the Territory for the government of said .ditch or acequia, and a printed copy thereof shall be furnished to each owner of a water right in said ditch.
The remainder of Section 4 as amended, defines the duties of the mayordomo, prescribing that he shall, under the direction of said commissioners, be the executive officer of said ditch, superintending all work thereon and the distribution of the waters, with power to collect fines and amounts to be paid in lieu of fatigue or task work, and to perform such other duties in connection with the ditch as shall be prescribed by the commissioners, or by the rules and regulations. In the remainder of the act are definitions of the penalties imposed. It is contended that by this action, the legislature gave to the various owners in the ditch the attributes of stockholders, to the commissioners the power of directors, and that in the exercise of these powers the course of a ditch may, by a majority vote of said so-called stockholders and directors, be changed, no matter how disastrous may be consequences to the minority. As producing this result'special emphasis is laid upon the words in Section 11, providing that “the commissioners shall have general charge and control of all affairs pertaining to the same.” It is to be noted, however, at the very outset, that the corporation which the legislature has thus created out of each community ditch in the Territory is in no sense a voluntary corporation. The investiture of corporate functions is not even made permissive. The legislature says that such ditches “shall be considered as corporations,” and this result follows equally whether all or none of these interested in such ditch desire it to.become a corporation. Tbe corporation thus created is not endowed with the general powers pertaining to corporations. It has only the powers expressly of by necessary implication granted to it by the act creating it and no more. It belongs to the class of corporations known as public involuntarjr quasi corporations. This character of corporation is discussed in Elmore v. Drainage Commissioners, 135 Ill. 269, 273, where it is said:
“In regard to public involuntary quasi corporations the rule is otherwise, and there is no such implied liability imposed upon them. These latter — such as counties, townships, school districts, and other similar quasi corporations — exist under general laws of the state which apportion its territory into local sub-divisions for the purpose of civil and governmental administration and impose upon the people residing in said several sub-divisions precise and limited public duties and clothe them with restricted corporate functions, co-extensive with the duties devolved upon them. In such organizations the duties and their correlative powers are assumed in invitum.”
5 The case stands upon a footing very different from a voluntary corporation organized for gain, wherein a majority of the stockholders and the board of directors chosen by such stockholders, are invested by law with wide discretion and ample powers as to the management and alienation of the property of the corporation. There the' interests of individuals formerly hold in severalty become fused into one body, known as the corporate property and the individual holdings become merged into certificates of stock. Here, however, this was no voluntary organization; the owners of these lands and the water rights appurtenant thereto were not given leave to incorporate, as a preliminary to which they deeded their several holdings to the corporation. On the contrary, the legislature for the purpose purely of more conveniently and economically distributing the water upon such lands and thus perhaps of leaving by such economical use an overplus for new appropriations, decided to make corporations out of each of the ditches. The legislature did not take away or diminish any property rights previously held by the several owners, nor could it do so. The same constitutional protection which would prevent the legislature by direct act from taking the property of a citizen without his consent, without just compensation being provided therefor, would prevent its doing so indirectly. As it could not by its fiat confiscate the property of the citizens, it could not by creating a corporation and officers thereof confide to such corporation the power to confiscate property. Alienation of property depends upon the consent of the citizen or upon the condemnation for public use, accompanied by due compensation and it was not within the power of the legislature by creating corporations as in the act of 1895, to wrest from an individual the ownership and management of highly valuable property and to confide such to a majority of his associates in an enterprise. "We do not believe, however, that this was the purpose of the legislature of 1895, and the subsequent legislation amendatory thereof. We are of opinion that the sole effect of these acts was to create a public corporation with power as indicated by the above quoted authorities, restricted simply to the exercise of those functions necessary to the ends of the law. Indeed this is all the original act provides, for it says in terms that such ditches are incorporated “for the purpose of this act.” These purposes, as we have seen, are in brief, properly to conduct and maintain through its officers the acequias under their charge with the power to contract and be contracted with for this particular purpose, and with the power to make assessments upon the coparcerners for the necessary expense of such ditch, including the salary of the mayordomo, and also with the power to receive cash in lieu of the assessments. It is true that the act also provides, as appellant points out, “that such' officers shall have general charge of all affairs pertaining to the same.” Whether the words “the same” refer as contended by appellants, to the ditch, or, as contended by appellees, to the particular matters relating to the ditch enumerated in the statute, the result is the same, and that is, that the general charge and control conferred by the statute is simply as to those matters which are incident to the orderly and economical government of the ditch as organized. The}r do not disturb property rights as they previously existed in the various coparceners, they do not disturb or destroy priorities as they existed before the statute of incorporations, they do not give the power to take away from one the water belonging to him and to give it to another, and they do not, in onr judgment, place it within the power of a majority of the owners, or in the powers of mayordomos or commissioners arbitrarily to withdraw a main ditch from land which has always enjoyed its ministrations.
We have, heretofore, considered this case in the light of the possibilities which might flow from the arbitrary or tyrannical act of a majority of the ditch owners in changing its course against the will of the minority. We come now to consider the case in the final aspect'under which it is presented by appellant, which is, that assuming that neither the original community understanding-nor the incorporation act of 1895, gave the power to change the course of the main ditch unnecessarily, such power exists where by natural causes the maintenance of the ditch on its old course has become an impossibility.
6 7 8 We are not disposed to question the applicability of this rule in the proper case, and we do not concur in the view advanced by appellees upon this point, that section five of the Compiled Laws fixes irrevocably the locus of a ditch once established. That section enacted in 1851 provides that “the course of ditches or acequias already established shall not be disturbed.” This section was enacted primarily for the protection of ditches from outside trespassers and was intended as a guarantee' against the destruction or disturbance of ditches then in existence and has no application to ditches thereafter .constructed. We are of opinion that in the establishment of all community ditches it was within the contemplation of the parties and was one of the underlying conditions under which the community enterprise was proceeded with, that should at any time the maintenance of any portion of the ditch constructed become by act of God or other overruling necessity, a physical impossibility, a modification of the original plan sufficient to meet this new state of facts was to be permitted. The ditch having been constructed for the benefit of all, the absolute impossibility of maintaining a portion of it should not result in the abandonment of the whole enterprise because the owner of the land upon which the change was to be made might object to such change. Such a right would be at variance with this whole "theory upon which such ditches were constructed in this Territory. We so hold not because it is generally speaking within the power of any one to take away from another that which is his simply because that result will conduce to the good of others similarly situated, but for the reason that the right to stand in the way of others to the destruction of their rights, as well as his own, was never within the original understanding for the building of the ditch. It must be presumed that when he entered into this original agreement he understood and agreed that his enjoyment of the right was subject to this overpowering contingency. In entering into this association he cannot be assumed to have looked forward to playing the “Old Man of the Sea,” to his associates or to the common enterprise. By this view we take nothing from him that was his by the original understanding, but we hold that that understanding properly construed gave him no such right. If in any case, therefore, it is demonstrated that it is absolutely impossible to maintain the ditch upon the old lines and the alternative presented is the necessary abandonment of the entire enterprise, we would have no difficulty in holding that this latter result need not follow, but that the course of the ditch may be modified to meet and obviate the insuperable obstacle, and this whether anjr particular owner at the time objects' or not. Any expense and hardship incurred upon such objecting owner in adjusting himself to such necessary change would, we may say in passing, be presumably considered in his favor by the ditch authorities thereafter, in the exercise of their wide discretion as to the apportionment of labor and expense of such ditch.
9 The views we have here expressed find support not only in reason and local history, but in our judgment are sustained by a distinct legislative declaration upon the subject. By the act of 1866 (C. L. Sees. 25-27) the legislature of the Territory provided for the re-establishment of ditches once destroyed. The wording of the fict is instructive. It is therein provided that “when any public ditch, or part thereof, shall be destroyed by rain ■or in any other maimer, and it shall be absolutely impossible to reconstruct it where it usually ran before it was destroyed, the mayordomo of such ditch with the consent of the majority of the common laborers of the same, should they deem it necessary,” may cut through the lands of others upon securing the consent of and making the agreed compensation to the owners of such other lands. (C. L. Sec. 25.) If such owners shall refuse to agree upon the value of such right of way, it is provided that three experts of known integrity shall be appointed by the proper justice of the peace to appraise the land (Sec. 26) and before appraising the same such experts shall ascertain “whether or not the ditch for which a new channel is solicited, is entirely destroyed and that the exorbitant labor or costs required to rebuild it renders its reconstruction absolutely impossible; and if in their opinion the injury done to such ditch may be repaired, they wall so report to the justice of the peace and in such case the land solicited for the purpose of opening the ditch, shall in no manner be touched; but if they should be of the opinion that a part of the ditch is irreparably destroyed the}' shall then proceed to examine the land or lands over which the new ditch should be opened and the place where the said ditch should property run.” (Sec. 27.) While we are aware that this act is primarily for the purpose of extending to ditch communities the power of eminent domain and that the provisions above emphasized are primarily for the protection of parties whose land it is sought to condemn, against the improvident use of that power, we consider the statute as clearly indicating the legislative mind as to the circumstances under which the course of ditches may be abandoned. It in effect says that the right to condemn land to change the course of a public or community ditch shall be allowed under certain conditions and not otherwise. By the enumeration of the eases under which the right of way may he condemned, it excluded all cases where those conditions do not exist. As it is to be presumed that the legislature in providing a procedure for changing the course of a public ditch had in mind all classes where such change could be made, its making that procedure applicable only to certain conditions, is clearly indicative that changes are not permissible unless such conditions exist. We therefore adopt as the condition under which a community ditch may be changed, the statutory expression that it is in cases where it is “absolutely impossible to reconstruct it,” where a part of it is “irreparably destroyed.” By this, we are not to be understood as meaning that the mere fact that the maintenance of the ditch in some other place will be less expensive or more convenient will justify its removal. Nor will the fact that it may once or twice in a season or of tener be destroyed by floods necessarily justify its removal. It must not be a matter of mere desirability or policy; that was presumably considered and settled when the community fixed the ditch. On the other hand, we do not consider a theoretical impossibility necessary. A practical impossibility will suffice. Cases might arise, for example, in which the construction of a ditch could be perpetuated in a given place by enlistment of extraordinary engineering resources quite beyond the means of the ditch owners. In eases such as these, while the impossibility is not absolute, it is practically so. If, to quote the terms of the statute, “the exorbitant labor and costs required to rebuild the ditch” render its re-construction impossible, that will 'suffice. It becomes thus a question to be determined upon the facts of each particular case. Applying these views to the allegations of the answer we are of opinion that the court below did not err in sustaining the demurrer. It is true that the answer in terms alleges that the floods flowing down said arroyo from year to year, have been so frequent as to render it pratieallv, if not entirely impossible to maintain said main ditch or Acequia Madre between the points referred to, but the reason given for this is because “the same would no sooner be, repaired than another flood would destrov it.” This shows that it is not impossible to re-build the ditch, but that on the contrary, it ma3r be repeatedly re-built. The gist of the allegation is apparentlv the trouble in maintaining it, and upon the matter of maintenance we note that the concluding paragraph of the answer alleges not that to longer maintain said abandoned portion of said main ditch will “be a practical impossibilit3r,” hut that it “will entail loss and expense/’ thus showing that the maintenance is a mere matter of policy. In construing the answer we must assume, if not upon judicial notice at least in the absence of a contrary allegation, that the disturbing causes here named, to-wit, the arroyo and the flow therein during the rainy season, existed at the time the ditch was built no less than at present, and that in spite of these the ditch was maintained for nearly thirty years prior to the filing of this suit. We further take notice of the fact that in this Territory the encountering of arroyos in the course of acequias is a very common matter and that this condition is often met by flumes and in other cases by renewing the banks of the acequia after flood waters have run down the arroyo. We further find it a circumstance to be considered in construing this answer that the petition upon which the action of the defendant commissioners was taken, attached to defendants’ answer as a part thereof, and embodying a number of reasons why the course of the ditch should be changed fails entirely to embody the reason now principally urged, to-wit, the difficulty or impossibility of disposing of the arroyo. We are aware that this is more properly a circumstance for consideration, along with other facts upon a hearing on the merits, but in construing a doubtful pleading it is not without weight.
10 From a careful examination of the answer we are of opinion that, fairly construed, it amounts simply to an averment that the further maintenance of the ditch across the arroyo will be attended with difficulty and expense. This does not, under the rules we have laid down! above, make a case justifying a change in the ditch, against objection by the owners of land along the six mile strip, and the action of the court below upon this point was therefore right.
Defendants, carrying the demurrer back to the complaint, set forth in their brief several matters as to which it is urged the complaint fails to state facts sufficient to justify the relief prayed. It is urged that the complaint sets forth no ground for injunction, in that there is no sufficient allegation of irreparable damage. We think, however, that the complaint is ample to justify the granting of the relief prayed. It shows that the wrongful act of the defendants, -if insisted upon, will deprive them of a valuable property right in water, will render some of their lands uncultivable, and will diminish or destroy their crops on other lands. It further shows that this damage will be continuous and that a multiplicity of suits, renewed from time to time in the future, will be necessary to secure from the defendants compensation in damages for the oft-repeated wrong. It is further alleged that the defendants are insolvent. This makes a case clearly calling for the writ of injunction. Davis v. Londgreen, 8 Neb. 43; Waddingham v. Robledo, 6 N. M. 347. The other points mentioned by defendants in their brief in criticism of the complaint are not argued, but we find nothing in them to justify the view that the complaint does not state a cause of action.
The judgment of the court below is affirmed.
Ira A. Abbott, A. J., concurs. We dissent from the conclusions reached by the majority of the court, Edward A. Mann, A. J., John E. Mc-Eie, A. J. MILLS, W. J.
— I agree with the contusion reached by the learned judge who wrote the opinion in this ease, and I do so for the reason that the appellants when their answer was demurred to and the demurrer was finally sustained, elected to stand upon it, did not amend their answer, took no proofs, and the judgment of affirmance is warranted by the pleadings.
I cannot, however, concur in the reasoning of the court, by which the owner of one water right in an acequia out of a possible hundred, can prevent the ninety and nine from changing its location .when it may be to the manifest advantage of all to make the- change.
I do not believe that the course of an acequia, when once established, is as unalterable as the laws of the Medes and Persians; the lay-out of a highway can be changed when public convenience requires it, and I am unable to see why the course of an acequia is any more sacred than that of a highway, especially as the court after a hearing, when it considers it proper that a change in its location be made, can incorporate in the decree, provisions which will amply protect all minority owners of land served by the waters of the ditch.