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001103 '. others out of the third; and, in some instances, apportioned the rights of the oonsumers in all three of the priori ties; that is, the rights of the oonsumers in the respeotive priorities appear to have been based upon tha order their rights attaohed. aocording to the date of their respective oontraots. It may be that, when the faots justify it, consumers of water supplied through the same ditch would have different priorities of right. Suoh, however, is not the general rule. On the contrary, all oonsumers, generally speaking, have the right to be supplied fi'om all the priorities deoreed the ditoh through Which they are supplied, whose rights by virtue of prior use aggregate the volume of suoh priorities. and in suoh oircum- stanoes stand upon an equal plane. In a oase where the first appropriation deoreed a ditohwas designed for some particular purpose or enterprise. and later priorities awarded were to supply a different olass or group of oon- sumers from the first, then the later priorities would be as distinct as if used through separate canals. and the rights of the different olasses of consumers would attach only to the respective priorities awarded for their respeotive use. lihat the testimony may establish on the subject of whether the several priorities decreed the ditch were award(ld to supply distinot olasses of oonsumers. .Ie do not express any opinior., If it does not, then the consumers, including the oity, entitled to be EV?plied with water through the ditch in question. whose aggregate rights equal tha aggregate volume of priorities awarded the ditch, stand upon an equal ple.ne, and the water privi- lege of each extends alike to all the water deoreeci the ditoh. . AJ3 stated in the early part of this opinion. we did not purpose going into the testimony in detail, in order to asoertain in what specifio in- stance the decree of the court was erroneous; but as it was clear the court had adopted an erroneous theory in disposing of the case, much to the pre- judioe of the appellant. VTe would refer to such material facts as were nec- essary to consider in announcing the rules of law whioh must be applied in fixing the relative rights of the parties to the action. We thinJc so far as we are able to gather from the briefs of counsel. that we have done so, and that from the pleadings and evidence. the trial oourt. with the aid of ".:U counsel. by a oareful consideration of the very voluminous pleadings and testimony. oan asoertain the faots upon whioh a decree should be based. in accordance with the views expressed in this opinion. We shall therefore, vacate the judgment and decree of the trial court as to all parties to whom an award was made. but as to those denied an award. tha judgment and deoree will not be disturbed, and remand the cause of proceedings as herein dir- ected. In remooding the oase for disposition as indioated. the oourt Will dispose of it without any further pleadings or testimony. exoept, if Offered. testimony to establish the relative rights of the parties in and to the respective priorities awarded the ditoh should be received and con- sidered. . In fixing the rights of individual contract oonsumers the decree must provide, in an appropriate way. for the payment of lawful carriage rates, and that while the deoree will put in permanent form the relative rights of contract consumers, it must be borne in mind that these rights are based upon contracts, and that they may be lost, if the parties only intermittent.- ly avail themselves of the right to exercise and enjoy them. The deoree should make appropriate provision in this nlspect. so that the city, as well as the bona fide applicants for water from the ditch in the future. may be fully proteoted. . Judgment vaoated in part and cause remanded with direotions. Decision en bane. Decided November 3d. A.D. 1913. Rehearing denied February 2d. A.D. 1914. -11-