It must be recognized by every one, familiar to any extent with conditions in the arid region, that the general prosperity of a state situated therein is dependent upon the economical distribution and use of water, and regulations designed to secure and promote such economical use and distribution, and secure the full duty of water, come clearly within the police power of the state. Again, the Legislature of New Mexico, as I view the effect of the sections of the act of 1907, hereinafter set out, determined that it was necessary, in order to protect the rights of other water users, that an appropriator, desiring to change the point of diversion of his water, should by an orderly procedure, upon notice to all other water users who might be affected by such change, have his right to make such change determined in advance, thereby preventing injury to others and long and protracted litigation. The right of an appropriator of water to change the point of diversion thereof has always been recognized by the courts in the arid states; but such right is universally denied where such change will be detrimental to the rights of other appropriators, whether subsequent or prior to the right of the party desiring the change.

If it be admitted that the Legislature has the right to regulate the use and distribution of water under its police power, such right to regulate must be held to extend to rights in existence at the time of the attempted regulation. As said by Mr. Justice Waite in the case of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77: "It matters not in this case that these plaintiffs in error had built their warehouse and established their business before the regulations complained of were adopted. What they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good."

The power exercised by the Legislature in this case, as I construe the statute, comes clearly within the police power of the state, as defined by Judge Cooley, and quoted with approval by a number of courts of last resort: "Police power, in a comprehensive sense, embraces the whole system of internal regulation by which the state seeks, not only to preserve the public order and to prevent offenses against the state, but to estabUsh for the intercourse of citizens with cit

vent a conflict of rights and insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with the like enjoyment of rights by others. State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410, 60 S. W. 91 [51 L. R. A. 151, 81 Am. St. Rep. 368]; Commonwealth v. Bearse, 132 Mass. 542 [42 Am. Rep. 450]." A proceeding for an orderly determination in advance of the right of an appropriator of water to change the point of diversion thereof certainly is calculated to "prevent a conflict of rights" between citizens, and to insure to each the "uninterrupted enjoyment of his own, so far as it is reasonably consistent with the like enjoyment of the rights of others," and the interests of the state are involved, and its rights should be protected. Irrigation Co. v. Water Supply Co., 29 Colo. 469, 68 Pac. 781.

Statutory proceedings, similar to the provisions now under consideration, have been upheld in many of the states, and have likewise been held to apply to rights existing at the date of the passage of the act. See Weil on Water Rights in the Western States (3d Ed.) § 506; New Cache La Poudre Co. v. Water Supply Co., 29 Colo. 469, 68 Pac. 781; Farmers', etc., Co. v. Gothenburg, etc., Co., 73 Neb. 223, 102 N. W. 487. Weil says (3d Ed. § 507): "Under the recent water codes, the appropriator is usually required by statute to apply to the state engineer for a permit before changing the point of diversion."

To deny to the state the power to regulate the exercise of a right to use water, where such right was acquired and perfected antecedent to the attempted regulation, would in my opinion be inimical to water users and detrimental to the prosperity of the state. If the Legislature could not make provisions for the manner of changing the point of diversion, the existence of power in the Legislature to make any regulations whatever applicable to such old rights must likewise be denied. It could not provide for the maintenance, as to such rights, of suitable headgates, diversion weirs, dams, measuring devices, or other appliances for the economical use and distribution of water. In fact, it would provide no regulations whatever, be they ever so essential for the protection of the rights of others or the public generally. I do not believe further argument is necessary; in fact, it appears to me so concededly within the police power of the state as to require no argument whatever to establish the affirmative of the proposition.

The principal contention of appellee, however, is that a fair construction of the terms of the act shows that it speaks prospectively from the date of its passage, and was never intended to and does not apply to water rights acquired prior to the passage of the act, or to the means of enjoying the same.

The act in question is remedial, and should therefore be liberally construed, so as to make it effectual against the evil which it was intended to abate, if such construction will not deprive any individual of his just rights. See Irrigation Co. v. Water Supply Co., supra, holding such a statute to be remedial, and section 686 (2d Ed.) Lewis' Sutherland, Statutory Construction, as to the construction of remedial statutes. And the intention of a remedial statute will always prevail over the literal sense of its terms, and therefore, when the expression is special or particular, but the reason is general, the expression should be deemed general. Lewis' Sutherland, Statutory Construction, § 687. And likewise, in construing a statute, consideration must also be given to the result which will follow such a construction, and if it be evident that such proposed construction will lead to an absurdity, or will render the statute impotent, it is not to be presumed that the Legislature intended it to have such meaning. The same author on Statutory Construction, quoted above, says: "A result which will follow from one construction or another of a statute is always a potent factor, and is sometimes in and of itself conclusive as to the correct solution of the question of its meaning." Section 487. And "statutes will be construed in the most beneficent way which their language will permit to prevent absurdity, hardship, or injustice, to favor public convenience, and to oppose all prejudice to public interests." Section 490, Lewis' Sutherland, Stat. Const. And again in the same section the author says: "In construing an act of the General Assembly, such a construction will be placed upon it as will tend to advance the beneficial purpose manifestly within the contemplation of the General Assembly at the time of its passage; and courts will hesitate to place such a construction upon its terms as will lead to manifest absurd consequence, and impute to the General Assembly total ignorance of the subject with which it undertook to deal."

In view of these general rules for the construction of statutes, let us consider the act of 1907, in so far as it is involved in this proceeding, and determine from the act the intent of the Legislature and the meaning properly attributable to the language used. The act in question is comprised of 73 sections, and was intended, I believe, to constitute a complete code of the law of irrigation. By this act the Legislature of the territory attempted to place New Mexico in the forefront of the arid states, in securing proper state control and regulation of irrigation enterprises. It is a matter of history, which I apprehend cannot be controverted, that those states which have provided for a complete system of state control of irrigation have developed and prospered most

cited among the states early to adopt such a system, and the result has been that millions of dollars have been expended in the construction of irrigation works, which has resulted in unbounded prosperity to the states. New Mexico, prior to 1905, did not attempt to provide for such control, and the result was that no outside capital came into the territory for investment in such enterprises. True, under the old system there was more or less development done, but almost exclusively by local capital. In 1905 the territorial Legislature enacted chapter 102, "An act creating the office of territorial irrigation engineer, to promote irrigation development and conserve the waters of New Mexico for the irrigation of lands and other purposes," by which it attempted in a way to provide for state control; but experience demonstrated that the act was not sufficiently comprehensive and modern to place New Mexico abreast of her sister states, and in 1907 the act was repealed, and the present coinprehensive, modern, and efficient code was enacted. Under the latter act millions of dollars have been expended in irrigation enterprises in New Mexico, and the resources of the state have amazingly increased. Therefore I do not believe the court should, unless the language of the act expressly requires, so interpret it as to undermine its foundation or impair its efficacy.

It appears to me that the construction contended for by appellees, that "the act speaks prospectively from the date of its passage," if adopted, would place New Mexico in the anomalous situation of having a complete modern irrigation code, with state supervision and control, applicable to all rights acquired thereunder, but such rights impaired and hampered by the lack of any supervision or control of rights theretofore acquired. Why, I would ask, is there any more reason for state regulation of a water right perfected in 1907 than there is of a right acquired by appropriation in 1906? In many instances, some of which will be enumerated later, the state has provided for the control and supervision of water rights, and the instrumentalities through which such rights are made available; but to illustrate the absurdity of the suggested construction we need only consider those sections of the act which provide for the change of the point of diversion. Granted that the claimed construction is sound, we then have a class of water users who may change their point of diversion so far as the statute is concerned, at their own pleasure, regardless of the injury other appropriators may suffer, without let or hindrance. I say, in so far as the statute is concerned, and do not desire to be understood as asserting that they may exercise the right to the injury of others, because such would not be correct; for it has always, so far as I know, been uniform

until he has diverted it into his ditch or canal. While the appropriator, under the law prevailing in this state, has the right to divert and use such water, nevertheless so long as it is in the natural channel, he has no claim to any specific water. Certainly the Legislature recognized that all the waters of the state, flowing in the natural channels, were the property of the state, and declared that it would regulate and conserve such waters-not a portion of such waters, but

all.

Counsel for appellees cites certain sections of the act, which he claims shows that the Legislature was speaking prospectively. True it is, many sections may be found which do speak prospectively; for it would have been impossible for the Legislature to provide a complete code, applicable to both old and new rights, without making some provisions for the acquiring, in the first instance, of a new right to appropriate and use water, or the determination of the rights of old appropriators. Section 12 of the act may be cited as an example. It provides that the territorial engineer shall have the supervision of the apportionment of water in this territory according to licenses issued by him and his predecessors and the adjudication of the courts. No one will contend, I apprehend, that this section undertakes to prescribe and limit the powers of the engineer under the act. It simply defines his power in that particular regard. It necessarily speaks prospectively, for the Legislature well knew that under the former laws in force in the territory many water users had old rights to the use of water, with no evidence thereof in any public office. Certainly the engineer could not supervise the apportionment of water to such rights, without an adjudication by some tribunal, and necessarily a judicial tribunal, of the rights of the old appropriators. The act therefore provided for the determination of such question by the courts, and thereafter gave the engineer supervision of the apportionment of water to all water users of a stream system. But said section 12 did not attempt to curtail any of the other powers or duties conferred upon such official by other sections of the act. The same reasoning applies to sections 13 and 14.

While these sections and many others might be cited which do speak prospectively, still a number of other sections might be quoted which show clearly that it was the intention of the Legislature to provide regulations and make provisions for the enjoyment and protection of old rights as well as new. I will refer to a few: Section 4, after providing for the appointment of a territorial engineer, says: "He shall have general supervision of the waters of the territory, and of the measurement, appropriation, and distribution thereof, and such other duties

in part is as follows: "If the territorial engineer shall, in the course of his duties, find that any works used for the storage, diversion or carriage of water are unsafe and a menace to life or property, he shall at once notify the owner or agent, specifying the changes necessary and allowing a reasonable time for putting the works in safe condition." Section 33 makes it a misdemeanor to use works for the storage, diversion, or carriage of water contrary to the instructions of the engineer, after inspection by him and notice that the same are unsafe; and such works may not be used until the engineer gives notice that the same are safe.

Now, can it be claimed that these sections only apply to works constructed under the act? Section 32 says "any works," and the evident purpose is to protect life and property. Is there any more reason for protecting life and property from unsafe dams and canals constructed under the act of 1907 than those constructed under any previous act. If the act was intended only to apply to future appropriators, then an old appropriator might continue to use a dam that was a menace to life and property without authority to any official to compel the owner to make such works safe. Clearly such was not the intention, but the engineer was given jurisdiction over old as well as new works in this regard.

Section 37 is as follows: "In any suit concerning water rights, or in any suit or appeal provided for in this act, the court may in its discretion submit any question of fact arising therein to a jury, or may appoint a referee or referees to take testimony and report upon the rights of the parties." If the act speaks only of new rights, then the court would have no power, under the act, to submit a question of fact to a jury, if old rights were involved in the litigation.

Section 42 provides that, where a party entitled to use water fails for the period of four years to apply the same to beneficial use, such unused water shall revert to the public. If the act only applies to new rights, then an old appropriator might fail to beneficially use water for any number of years, and still would not forfeit his right thereto.

Section 44 makes all water appurtenant to the land where used for irrigation, and provides for the transfer of a water right separate and apart from the land, by following a prescribed procedure. Following out the argument contended for, an old appropriator could not sever his water right from the land and transfer it. And likewise, under section 45, supra, an old appropriator would have no authority to use the water for any other purpose than that for which it was appropriated.

The next section provides that every ditch owner shall, when requested by the territorial engineer, cosntruct and maintain a substantial headgate at the point where the wa