I concur in the order reversing the decree of the district court and directing that court to amend its conclusions of law and to enter a decree affirming the order of the state engineer approving the application of Leland H. Kimball whereby he seeks to appropriate ten second feet of water from Little Cottonwood creek. I am of the opinion that a similar order should be made with respect to the so-called "exchange application."
The state engineer is granted power upon written application approved by him to permit appropriated water to "be turned into the channel of any natural stream * * * of water, * * * and commingled with its waters, and then be taken out, either above or below the point where emptied into the stream, * * * but, in so doing, the original water in such stream, * * * must not be deteriorated in quality or diminished in quantity." Laws Utah 1919, c. 67, § 9, as amended by Laws Utah 1921, c. 72; SpanishFork City v. Spanish Fork East Bench Irr. Mfg. Co., 46 Utah 487, *Page 254
151 P. 66; United States v. Caldwell, 64 Utah 490, 231 P. 434. My associates are of opinion that, as the water of Utah Lake is inferior in quality to the water of Little Cottonwood creek for domestic and culinary uses, the state engineer was not authorized to approve the so-called "exchange application." If the stockholders of the respondent company were, under the proposed plan of exchange, to be compelled to use Utah Lake water for domestic or culinary purposes, then the conclusions reached in the prevailing opinion would be clear. The stockholders of the respondent company, however, under Kimball's exchange application, will have no occasion to use Utah Lake water for any other purpose than that of irrigation. The water of Utah Lake is equal in quality to the water of Little Cottonwood creek for irrigation purposes. The district court so found, and such finding is not here questioned by anyone to this proceeding.
It is a cardinal principle of law that, in construing a statute, the primary and sole object of the courts is to give effect to the real purpose and intent of the Legislature. Courts frequently are required to either restrict or enlarge the ordinary meaning of words in order that the plain legislative purpose may be accomplished. It has ever been the law of this state that the title to water appropriated from a natural source has been in the public. The appropriator can acquire only a right to the use of the water. The rights of the appropriator are measured and limited by the beneficial use to which the water is put. If an appropriator uses water solely for irrigation purposes, his right should be measured and limited by the use for such purpose. I can perceive of no good reason why the provisions of the law which makes beneficial use the basis, the measure and the limit of all rights to the use of water in this state should not and does not apply to the quality of water as well as to the quantity of water which is put to a beneficial use. There can be no doubt but the purpose sought to be accomplished by limiting the right of private *Page 255 ownership to water arising from natural sources was to make it impossible for an individual to prevent the further use and consequent development of our natural resources. The adoption of a rule of law that an appropriator of water suitable for culinary uses has a vested right to use such water for irrigation purposes when other water equally suitable for irrigation is made available to such appropriator without any additional cost to him might well tend to retard the development of this state as much as would the adpotion of a rule of law recognizing that an appropriator of water has a vested right to use more water than is reasonably necessary. When the early pioneers settled this region, they brought under cultivation the lower lands and diverted the water from mountain streams to irrigate the same. As our population has increased, the higher lands have been brought under cultivation wherever water is available for irrigation. It is upon about 1,200 acres of this higher land that Kimball proposes to use the water applied for. In his exchange application he proposes to take water out of Little Cottonwood creek during the irrigation season to irrigate the land and in lieu thereof turn into Little Cottonwood creek an amount of Utah Lake water equal to that taken out. He seeks the right to exchange Utah Lake water for Little Cottonwood water because the land which he proposes to irrigate is so high in elevation that the cost to elevate Utah Lake water to such land would be so great as to be practically prohibitive. If the exchange application is granted, Kimball can irrigate by gravity the 1,200 acres of land upon which he proposes to convey the Little Cottonwood creek water. The Utah Lake water will, under the proposed plan, be turned into Little Cottonwood creek above the point where the water of Little Cottonwood creek is now being diverted. Under the plan proposed in Kimball's applications, a pipe line system will take water out of Little Cottonwood creek above the point where the Utah Lake water is to be turned into Little Cottonwood creek and thus Little Cottonwood creek water for culinary *Page 256 and domestic uses will be delivered at all times to the persons entitled thereto through the pipe line system. If culinary and domestic water from Little Cottonwood creek is diverted as proposed by Kimball through the pipe line system, it will reach the places for use in a better condition than when delivered through open canals and ditches. The pipe line system, under the proposed plan, is to be constructed and maintained without any cost to the water users.
If the result reached in the prevailing opinion is to become the established law in this jurisdiction, it means this: Even though our mountain streams may be used to render productive our otherwise barren higher lands, and even though the lower lands can be supplied with water equally suitable for irrigation and without cost to the lower lands, none the less the higher lands must forever remain barren and unproductive merely because the lower lands were the first to be irrigated with the water from our mountain streams. Such a policy on the one hand permits the perpetual waste of water available for the irrigation of our lower lands and on the other hand perpetually withholds from productivity vast areas of our state. It was for the very purpose of avoiding the evils that would necessarily flow from such a rule that the lawmaking power provided that "the waters of all streams and other sources in this state, whether flowing above or under the ground, in known or defined channels, is hereby declared to be in the public subject to all existing rights to the use thereof," and that "beneficial use shall be the basis, the measure and limit of all rights to the use of water in this state."
With the constant increase of our urban populations, there is an ever increased demand for more water suitable for culinary uses. The supply of water suitable for culinary uses is limited, and doubtless, in many instances, must be secured from water which has heretofore been used for irrigation purposes. Where there is a demand that water heretofore used for irrigation be applied to culinary and domestic purposes, I can see no good reason why such demand *Page 257 should not be satisfied so long as those who have appropriated the water taken to satisfy such demand are supplied with an equal quantity of water equally suitable for the irrigation of their lands and without any cost to them. If water has been appropriated for the sole purpose of generating electric power, the appropriator should not be heard to complain merely because water has been turned into his source of supply which renders it unfit for irrigation and domestic purposes. So, likewise, an appropriator of water for extracting precious metals from ores should not be heard to complain merely because his source of supply has been rendered unfit for irrigation and domestic purposes. I believe the correct rule to be that, so long as quality of water supplied meets the requirements of the uses to which it is put, no vested right is infringed, and the appropriator may not be heard to complain.
Moreover, the quality of water is dependent upon the uses to which it is put. Water is good or bad, superior or inferior in quality, only when considered in connection with its use. Abstractly there are probably no two streams or sources of water supply within this state identical in quality. A strict adherence to the letter of the law might well defeat all applications for an exchange of water. In my opinion, a strict construction of our statute such as is adopted in the prevailing opinion with respect to the exchange application will defeat the very purposes for which the law relating to exchange of water was enacted. Water appropriators should not be permitted to play the part of the proverbial dog in the manger.
I am of the opinion that the state engineer properly approved both of Kimball's applications.