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OOlOiG .lo, the only property he got was subject to defendants' prior right, the anS'ller is that the same sit.uation eltist.ed in Sterling v. Pawnee oompany. It there might; have been equally well said that the agricultural right of the Pawnee oompany was subject to the domestio use of Sterling, but this oourt rejeoted that oonstruotion in positive terms. p. 426. I ., (5) The argument of defendants, based on deoisions from other states, that peroolations belong to the owner of the soil is unsound in Colorado. Ever since Comstook v. Ramsay, 55 Colo. 244, 133 Pac. 1107. we have held '., seepage and percolation belong to the river, lUId have gone so far. though against the judgment of the writer. as to hold that one may not reoapture lealcage from his own reservoir. Rio Grande Co. v. Viagon Vlheel Gap Co.. 68 Colo. 437, 191 Pac. 129. See, also, Durkee Ditch Co. v. lieans. 63 Colo. 6, 164 Pao. 503; Trowell Co. v. Bijou Dist., 65 Colo. 202, 176 Pac. 292; Fort Morgan Co. v. l1cCune, 71 Colo. 256, 206 Pao. 393; and since it belongs to the river it belongs to the people of the state by artiole 16, seotion 5 of her Constitution. These oases refute any claim that peroolation or seepage of any water belongs to the land owner, and fix the prinoiple that any appropriation of it must be subject to all prior appropriations from the river, whioh seems in aooord with the main part of the above quoted statute, but are contrary to the proviso thereof. . If it be olaimed that we cannot establish a rule contrary to a statute. we answer that it is true, but since the Constitution gives the river water to the people, subjeot to appropriation, and since the seepage belongs to the river it belongs to the people by force of the Constitution and the statute cannot transfer it and it must be subjeot to appropriutions as river water. It follO\vs that the judgment nn.lst be, and it is affirmed. On Rehearing. En Bano. J.ffi. JU3TICE BURKE. The foregoing opinion was announced February 27, 1928. On the 13th of the follovling month a petition for rehearing was filed. Silt days later that petition was granted. Ma.y 7. 1928. the oause was re-argued orally. It now appeared that while the opinion rested upon the assumption that the seepage in question "belongs to the river" suoh assumption was one of' fact, the finding of whioh the reoord left in doubt. Aooordingly on June 11, 1928. we remanded the cause with directions to the trial oourt to find ''whether the water in question ever reached the river, and if not whether it Vlould reaoh the river if not diverted but left to itself." Complying therevlith that court in a supplemental finding whioh, on October 30. 1928. Was made a part of this reoord, speoifioally held "That the water in question did reach the river; and that said water, if not diverted but left to itself, Vlould reach the river." -3-