I concur in the prevailing opinion of the CHIEF JUSTICE affirming the judgment of the court below as to the exchange application. I think the judgment should be affirmed also as to the application to appropriate water. In that I concur in the opinion of District Judge BRAMEL. What I thus say applies to that application.
At the threshold it is important to understand the nature and purpose of such application. The applicant, by his application filed in the state engineer's office, did not aver or state that there were in Little Cottonwood creek, the source of all of the waters involved, any public, undiverted, or unappropriated waters; nor did the engineer find that there were any such waters not theretofore diverted, appropriated, and beneficially used by others. While the applicant, in his application, stated that he made the application to acquire "the right to use a portion of the unappropriated waters of the State of Utah for irrigation purposes;" that the flow of water to be used and appropriated was ten cubic feet per second; that the waters were to be used from April 1 to October 31 of each year (covering the irrigation season); that the waters were to be stored each year from January 1 to December 31 (during the whole year); that the direct source of supply was from Little Cottonwood creek — yet, as explanatory to all that, the applicant, in his application, further stated that "the water applied for under this application is to be acquired through the construction of a pipe line to supply culinary water to those dependent upon the flow of Little Cottonwood through open channels for water for domestic purposes. The water so saved will be stored in what is known as the Beaver Pond Reservoir during the nonirrigation season and released for use upon the lands described during the irrigation season," giving *Page 271 a description of the lands upon which the waters so saved were to be used for irrigation.
Thus the real purpose of the application was to construct a pipe line to supply culinary and domestic waters to those who were entitled to use and who were using such waters through open canals and ditches constructed by them, and especially to acquire a right to store and use all such waters so saved by supplying culinary and domestic waters to those entitled thereto by means of a pipe line instead of by open canals and ditches. What the applicant thus by his application represented is, not that there were unappropriated and undiverted public waters in the creek, but, if permitted to construct a pipe line system and by such means permitted to supply those entitled to culinary and domestic waters, he would be able as represented by him to save and store much of such waters which, as he contended, are lost by seepage and evaporation by having them carried in open canals and ditches to the premises of prior appropriators. That is the basis of the applicant's asserted right sought to be initiated by him. It is that which he calls an application to appropriate unappropriated, undiverted, and unused public waters of a natural stream or source of supply. Hence, at the very beginning is involved the troublesome and disputed question of jurisdiction or authority of the state engineer under the laws of this state to entertain, approve, and grant such an application for the purposes therein stated.
To the application, the respondent, the Little Cottonwood Water Company, and others similarly situated, filed a protest in the engineer's office, objecting to the granting of the application, denying that there were any unappropriated and undiverted waters of the creek, and alleging that all of such waters for more than fifty years had been diverted, appropriated, and beneficially used by the protestants and their predecessors in interest, and that in 1910 an adjudication was had in the district court of Salt Lake county in a cause wherein all persons interested or claiming to have any interest in or to the waters of the creek were parties, and a *Page 272 decree rendered adjudging that all of the waters of the creek had been diverted, appropriated, and a beneficial use made of them by the parties to the cause and fixing and determining their respective rights in and to the use of all of the waters of the creek, and that such decree, ever since its rendition, was in full force and effect.
No findings were made by the engineer with respect to any of the matters presented by the protestants. Upon hearings had before him, the engineer but ordered that "this application is approved on the following conditions: (1) That actual construction work shall begin within six months; (2) that construction work shall be fully completed by December 20, 1928; (3) that the water appropriated shall be applied to the beneficial use set forth on or before December 20, 1930."
The protestants appealed to the district court, where, on a hearing before the court, and upon findings made and conclusions stated, the district court rendered a judgment disapproving the application and directing the state engineer to cancel it. From that, the applicant and the state engineer without a bill of exceptions and only on the findings, appealed to this court, contending that upon the findings as made the applicant was entitled to a judgment approving and confirming the application.
In addition to the findings referred to in the prevailing opinion is the finding:
"That said Leland H. Kimball under said application proposed to construct a pipe line from some point on said Little Cottonwood Creek not indicated in said application, and to take the water from said Little Cottonwood Creek which the plaintiff and its stockholders and other owners and users of water from Little Cottonwood Creek have heretofore used and to conduct said water to those dependent upon the same for culinary uses, and to supply the said owners, users, and those dependent upon the flow from Little Cottonwood Creek through said proposed pipe line, and proposes to take and store such water as may be saved, if any, by conducting a portion of the water now and heretofore flowing through the channels, ditches, canals, and conduits provided by the present owners and users of said water, and to appropriate *Page 273 any water which may be saved by conducting the same through a pipe line instead of through the open channels now owned, constructed and used by the plaintiff, its stockholders, and others similarly situated using water from said Little Cottonwood Creek."
By that finding the court clearly defined the nature of the applicant's claimed right to appropriate waters as applied for by him. Such, too, as is seen, is in accordance with the application itself filed in the state engineer's office. It is that kind of an application to acquire and appropriate waters in such manner and as so defined which the trial court disapproved and directed the engineer to cancel. It is that kind, and none other, before us for consideration. None other was considered by the engineer and none other was considered or determined by the trial court. And in our consideration of it I see no license or justification to wander from it.
The trial court further found that, in a case in the district court of Salt Lake county, in the case of Union and East JordanIrr. Co. v. Richards Irr. Co., et al., including the Little Cottonwood Water Company and all other persons as parties claiming any interest in or to any of the waters of Little Cottonwood creek, it, in 1910, among other things was adjudged and decreed:
"That in the year 1848 and in each year thereafter until and including the year 1856, the water of said stream, `Little Cottonwood Creek,' was diverted into the ditches in this finding specified, and used and appropriated as a primary water right for agricultural, domestic, and culinary purposes, by certain of these defendants, and their predecessors in interest, during each and every year; and in the year 1856 all the primary water of said stream was appropriated for the purposes aforesaid by such defendants and their predecessors in interest, and the whole of such water then was, and ever since has been, and now is, reasonably necessary for such uses and purposes.
"That all persons that have any interest in the water of Little Cottonwood Creek have been duly served, and have either pleaded herein or the time to plead has elapsed, and no one has any right to this water except as specified in this decree. *Page 274
"All known and unknown parties hereto, together with their agents and employees, are hereby enjoined from in any way interfering with the waters of Little Cottonwood Creek, except as specified in this decree."
The court further found that such decree, ever since its rendition, was in full force and effect and the waters of the creek distributed in accordance with the terms and conditions of the decree by commissioners appointed by the court from year to year; that, except in a comparatively short period in the month of May or June of each year when the flow of the creek was at its peak, all of the normal flow thereof during the irrigation seasons for many years by means of open canals and ditches of various lengths and capacities was diverted and used by the Little Cottonwood Water Company and others for irrigating purposes, and that many persons having rights to the use of such water also acquired the right to use and used them during irrigation seasons as well as in the winter months and nonirrigation seasons for culinary and domestic purposes. In such respect the court further found:
"That with the present means of diversion and conveyance, to wit, open canals and ditches, it is reasonably necessary for plaintiff and said other persons, firms and corporations entitled to the use of said waters for culinary and domestic purposes, to divert said entire fifteen second feet of water in order to deliver in usable condition at their respective points of use the amount of water actually used by them as hereinbefore stated for said culinary and domestic purposes."
The court, however, also found that, by supplying such users with culinary and domestic water by means of a suitable and proper pipe line system, which the applicant proposed to construct at his own expense, instead of by open canals and ditches, substantially ten second feet of water could be saved and stored, and that it was such waters which the applicant by his application and by such means sought to claim and appropriate. *Page 275
Thus upon the findings it is made to appear that at the time of the filing of the applicant's application it was shown before the engineer, and also before the trial court, that all of the waters of the creek, for many years prior thereto had been diverted, appropriated, and used for irrigation and for culinary and domestic purposes, and that the respective rights of all persons, including the Little Cottonwood Water Company and its predecessors, in and to the use of all of such waters, for more than fifteen years prior to the filing of the applicant's application, by decree of a court of competent jurisdiction, had been decreed and determined, and that all of the waters of the creek had been diverted, appropriated and beneficially used by such prior appropriators, and that the waters so used and decreed were reasonably necessary for their respective uses and purposes.
It is said the engineer was not a party to that decree. What of it? Surely, he is not clothed with power to review, set aside, modify, revise, or disregard solemn decrees of courts of competent jurisdiction. The statute expressly forbids it. Until the decree is modified by a court of competent jurisdiction, the engineer is bound to respect it and to act accordingly. He may not ignore or disregard it on the unfounded claim that he was not a party to it.
But it is also said that neither was the applicant a party to the cause in which the decree was rendered. But he asserts no right which he then had or has since acquired, or which was not involved and adjudicated in the cause. So far as disclosed by the findings on this appeal, it nowhere is made to appear that the applicant assailed or questioned the decree rendered in 1910, or that he, as matter of fact, claimed anything hostile to or in conflict with it. No claim is made by him that since 1910 the status of the parties had changed, or that new conditions had arisen, or that the use of any of the waters awarded in 1910 had since been abandoned or the waters not beneficially used, or that more water was awarded by the decree to any party than was reasonably *Page 276 necessary for his use and purpose. Nor, so far as appears by the applicant's application filed before the state engineer or by the findings made by the trial court, is it made to appear that there were any public, undiverted, and unappropriated waters of the creek or of any tributary thereof not theretofore diverted and appropriated by prior appropriators for irrigation and for domestic and culinary purposes. The applicant, by his application, did not aver nor did the engineer find, anything of that kind. To the contrary, the trial court expressly found that, when the applicant filed his application, and for many years prior thereto, there were no waters in the creek not theretofore diverted and used for irrigation and for culinary and domestic purposes.
What, then, are the waters which the applicant seeks to file on and claim or acquire by his application? They are waters theretofore diverted and appropriated by prior appropriators and for many years used by them for culinary and domestic purposes. That is shown by the applicant's application and clearly and expressly found by the trial court. What right or power has the state engineer to permit the applicant to do so? That is the question. The engineer has no powers except such as are expressly conferred upon him by statute. He can permit and entertain filings only on public and unappropriated waters of a natural stream or source of supply. Laws Utah 1919, c. 67, § 41. The statute is clear as to that. As is seen, there were no such waters in Little Cottonwood creek. The prior appropriators had a vested right in and to the use of all of such waters theretofore appropriated and diverted by them for beneficial purposes. An appropriator legally appropriating and diverting water for a beneficial use from a natural stream or source of supply acquires not only the right to the use thereof, but the corpus of the water itself becomes his property after the water has entered in and is carried or conducted by his private ditch or canal or by other private means of conveyance. Salt Lake City v. Salt LakeCity Water, etc., Co., 24 Utah 249, 67 P. 672, *Page 277 61 L.R.A. 648; Parks Canal, etc., Co. v. Hoyt, 57 Cal. 44;Spring Valley Waterworks v. Schottler, 110 U.S. 347,4 S. Ct. 48, 28 L. Ed. 173. The engineer has no authority to interfere with or disturb rights in or to any such waters.
Now, while the applicant does not seek to appropriate any waters directly out of private ditches or canals of prior appropriators, yet he seeks to take waters out of the natural stream to which the prior appropriators have acquired a vested right to the use thereof and to deliver such waters to them by means of a private pipe line system owned and controlled by him. If permitted to make a filing to do that, then the right to the use of the waters, as well as the property right in and to the corpus of the waters after they enter into and are carried by the private pipe line system, in effect are transferred from the prior appropriators to the applicant, and all right, title, and interest theretofore acquired by them in and to the use and to the corpus of the waters taken from them. I do not see what authority the state engineer has to interfere with or disturb such vested rights.
But it is urged that to require or to permit, in the winter time and in nonirrigating seasons, fifteen second feet of water of the creek to flow down to the premises of the prior appropriators for culinary and domestic purposes, when one second foot of water delivered to them by means of a pipe line system is all that is necessary for their use for such purposes, constitutes a waste by seepage and evaporation of about ten second feet of water when conveyed by means of open ditches and canals, and hence the applicant ought to be permited to save and reclaim such waters, and that, to accomplish such purpose, it is contended, a filing in the state engineer's office was a prerequisite. In considering such theory, let it again be noted that the applicant by his application did not claim a waste of water was committed by any one. Nor did the engineer or the trial court find that any waste had been committed. Not anything is found or claimed that the ditches or canals by means of which the prior appropriators coursed the waters to their premises *Page 278 were improperly or negligently constructed or maintained, or that they were inefficient or unusual. The method by which they coursed the waters to their premises was the usual and customary method of carrying waters in this state. In coursing waters in open ditches and canals some loss of water by seepage and evaporation is unavoidable. But I cannot call such a loss a waste of water in a legal sense. To do so is to call about 90 per cent of all the customary and usual methods of carrying water in this state for irrigation and other purposes a waste of water. Much less may such a loss of waters be designated public and unappropriated waters of a natural stream or source of supply. What in effect the applicant seeks to accomplish is, not to reclaim waste waters, but to save or to conserve water, by proposing to construct a pipe line system to carry waters to users entitled thereto and thereby reduce a loss of water resulting from seepage and evaporation by having them carried in open canals and ditches, and to claim the benefit of what water may so be saved by his proposed system. Commendable as such a proposition or plan may be, yet I do not see anything in the statute authorizing the engineer to entertain or to determine it. As prescribed by the statute, the authority or jurisdiction of the engineer to proceed with or entertain or grant filings is dependent upon the essential jurisdictional fact that there are unappropriated and undiverted public waters in a natural stream or source subject to appropriation. Here there were none. All of them, as found by the trial court, having been appropriated and diverted by prior appropriators and coursed in private and suitable and properly constructed and maintained canals and ditches and by a usual and customary method in this state of carrying waters for irrigation and other purposes, the engineer had no further jurisdiction over such waters, except as further prescribed by the statute to exercise a supervision over a distribution of them in accordance with the acquired and vested rights of those entitled to the use of them. *Page 279
Though the loss of water resulting from seepage and evaporation when carried in open canals and ditches by the prior appropriators for culinary and domestic purposes be regarded a waste of water, still I do not see what authority or jurisdiction the engineer had over the matter. The quotation in District Judge BRAMEL'S opinion from and his reference to the case of Eden Irr.Co. v. District Court, 61 Utah 103, 211 P. 957, show that the state engineer has no such authority or jurisdiction. That, too, is the holding in the case of Tanner v. Beers, 49 Utah 536,165 P. 465. I do not well see how the filing of the application in hand may be permitted and approved without overruling or modifying those cases. Where a waste of water by a user is asserted or claimed, the statute, Laws Utah 1919, c. 67, § 39, prescribes the method of investigation and the remedy by which it may be determined. The method so prescribed is by reporting the alleged waste to the state engineer, or by petition to the district court for an investigation of the alleged waste, when the engineer may make an investigation and report this findings to the court of such alleged waste, or the court may order or make such an investigation, and, if such investigation warrants, may proceed to make a determination with respect thereto. The engineer is given no authority to determine the mater. He can only investigate it and report his findings to the court, who, and not the engineer, is clothed with power to determine it. No such proceedings were had, and, as heretofore shown, no charge or findings made of a waste of water.
But it in effect is further asserted that, inasmuch as under the laws of this state no right to water (forgetting that the statute refers to public and unappropriated waters in a natural stream or source) may be acquired except through an application filed in the office of the state engineer, the applicant, to initiate a right to claim or appropriate the waters referred to in his application and in manner as found by the trial court, was required to make a filing in the engineer's office, and, unless the engineer approved the *Page 280 application, the applicant was not in position to assert any kind of right or claim against the prior appropriators, either as to an alleged waste of water, or as to any other kind of right or claim, and hence as a prerequisite to enable the applicant to initiate and assert a claim or right against the prior appropriators, the engineer was justified in granting and approving the application. If, as has been seen, the applicant by his application did not present anything which the engineer was authorized or justified to grant him, it certainly cannot be successfully contended that the engineer was required or justified in granting him a semblance of something to enable him to assert an apparent right which the engineer had no authority to give him, nor to enable or aid him to wage a contest with whomsoever may refuse to yied to demands of his unauthorized asserted claim or right. Surely no power or authority is conferred on the state engineer merely to enable an applicant to wage a contest or to carry on litigation with others, or to aid him to do what the engineer may not himself do, interfere with or disturb vested rights of others.
Observations also are made to the effect that, since upon the findings as made there is a flow of water of 250 second feet at high peak of the creek for a short period, in June or May, and, as is further asserted, that no claim was made that all of such waters were necessary to supply the use of prior appropriators, the conclusion is deduced that some of such waters at high peak were undiverted and unappropriated and subject to appropriation, and hence the applicant's filing may be considered as a claimed right to file on and appropriate such waters. In the first place, the conclusion deduced is mere argument and is against the express finding of the trial court; and, in the second place, the applicant by his application did not claim or seek to appropriated any such waters. Nor was the application granted or approved by the engineer on any such theory. The conclusion is merely gratuitous, and, as has been seen, is wholly inconsistent with what the applicant by his application *Page 281 sought to accomplish, a right to claim and acquire water which he may save by delivering waters for culinary and domestic purposes to those entitled to the use thereof, by means of a pipe line system, instead of having such waters carried to the premises of prior appropriators by means of open canals and ditches.
FOLLAND, J., being disqualified, did not participate herein.