I do not concur in the holding that a valid appropriation of unappropriated waters can be made only by filing an application with the state engineer as by our statute provided; nor that a compliance with the statute in such particular is requisite to a valid appropriation; nor that the method of acquiring a right to the use of water as by the statute provided is exclusive.
It is conceded that the essentials of an appropriation are an intent to appropriate, an actual diversion of waters and applying them to a beneficial use. That was true before the statute, and is true under the statute. No matter what the form or method may be in making an appropriation, the foundation of the appropriation, nevertheless, is an actual diversion of waters and making a beneficial use of them. The right rests on possession — the actual taking of waters, diverting them and beneficially using them. Ownership of the corpus of public unappropriated water may not be acquired. The right thereto is only possessory. Such possession may be evidenced by methods other than as prescribed by the statute. There is no better evidence of possessing anything than by seizing and taking it. The right to possess it, of course, may be involved and questioned; but actual possession is good evidence and notice of claim of right. It is good as against every one who can assert no better right. An actual taking, diverting, and beneficially using water is as much notice of a *Page 49 claim of right as the making of an application or the posting of a notice. Since the right to the use of water rests on possession, he who is first possessed of public and unappropriated waters, who took them, diverted and beneficially used them before intervening claims, acquires the first and the best right. Hence the maxim so frequently asserted and applied to appropriation of waters — first in time, first in right. Such doctrine is not disturbed, but is recognized by the recent codes and statutes, including our own, relating to appropriations of public and unappropriated waters. It is the foundation upon which all appropriations rest under the codes and statutes as well as before their adoption. No matter what the method or procedure may be, there is no valid or completed appropriation until an actual diversion of the waters is made and the waters beneficially applied. All else is but initiatory thereto.
The early customs out of which the law of appropriations grew were based on the principle that rights on the public domain were open to all, the first possessor being protected, and that all should have an equal chance. And the doctrine always prevailed that the right to the use of public waters was not complete until the waters were actually taken into one's possession and beneficially used. In connection therewith there grew up also what is known as the doctrine of relation back, which, before these recent statutes, was recognized and applied in different jurisdictions; that is, the right to possession, diversion, and use related back to the commencement of the work or public declaration of an intention to appropriate. Hence, even before the statutes, in some jurisdictions, a notice of intention to appropriate was posted at the place of intended diversion of waters from the stream, designating the quantity of water intended to be appropriated and the use to be made thereof and the manner and means by which the waters were to be diverted; and when such was done and the work prosecuted with reasonable diligence, the right to the use of the waters, when actually diverted and beneficially used, related back to the posting of the notice or commencement of the work or declaration of *Page 50 intention. But the application of the doctrine of relation back led to some confusion and controversy; and, in some instances, to mere speculation in dealing in and vending of water rights and titles. There thus in the doctrine were involved questions of bona fides of intentions to appropriate, reasonable diligence in the prosecution of the work, and other kindred matters. To avoid or overcome such controversies, usually arising in the application of the doctrine, and to preserve evidence of rights and title to the use of waters, led to the enactment of the recent codes or statutes concerning the appropriation of waters. Such was the scope and object of the statutes generally, differing only in detail or method. Such, I think, is the scope and purpose of our statute.
One of the first statutes on the subject is that of California. In such particular the California statute provides that all water or the use of water within the state is the property of the people of the state; that the appropriation must be for some useful or beneficial purpose; that a person desiring to appropriate water "must post a notice in writing in a conspicuous place at the point of intended diversion," stating therein the quantity of water claimed, the purpose for which it is claimed, the place of intended use and means by which it is intended to be diverted, and the size of flume, ditch, etc., and requiring a copy of the notice to be recorded in the office of the recorder of the county in which the notice is posted. The statute further provides the time within which the claimant must commence the construction of the works, etc., and contains other requirements not necessary here to notice; that upon compliance with such statutory provisions the claimant's right to the use of water related back to the time the notice was posted; that "all persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some beneficial purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right ceases." The statute further provides that "a failure to comply with such rules deprives the claimants of the right to the use of the *Page 51 water as against a subsequent claimant who complies therewith."
In considering this statute, the Supreme Court of California, in the case of Lower Tule, etc., Co. v. Angiola, etc., Co.,149 Cal. 496, 86 P. 1081, held that to make a valid appropriation it was not necessary to post and record a notice of appropriation as provided by the Code, and that —
"The method of acquiring a right to the use of water as there prescribed is not exclusive. One may by a prior actual and completed appropriation and use, without proceeding under the code, acquire a right to the water beneficially used, which will be superior and paramount to the title of one making a subsequent appropriation from the same stream in the manner provided by that statute."
Many cases from that jurisdiction are cited, among them DeNecochea v. Curtis, 80 Cal. 397, 20 P. 563, 22 P. 198, Wells v. Mantes, 99 Cal. 583, 34 P. 324, and Watterson v.Saldunbehere, 101 Cal. 112, 35 P. 432. In these cases, as well as in other cases cited in Lower Tule, etc., Co. v. Angiola,etc., Co., the scope and purpose of the statute are considered and held to be as hereinbefore indicated.
The Wyoming statute (Comp. St. 1920, § 835), provides that the water of the state is the property of the state; that beneficial use is the basis, measurement, and limit of the right to the use of water, and that "any person, association or corporation hereafter intending to acquire the right to the beneficial use of the public water of the state of Wyoming shall, before commencing the construction, enlargement or extension of any ditch * * * make an application to the state engineer for a permit to make such appropriation," and also contains provisions as to the commencement and completion of the works, applying the water to a beneficial use, the making and filing of proof, maps, etc., and when the appropriation is made in accordance with the statute it provides that "the priority of such appropriation shall date from the filing of the application in the engineer's office." Section 850. The statute, in substance, is like ours. In considering the Wyoming statute the federal court, in the case of Morris v.Bean (C.C.) 146 F. 423, after observing that the complainant had not complied with the statutory requirements of *Page 52 Wyoming, and that the inquiry was whether an appropriation of water could be made by diversion and beneficial use without complying with the statute, said:
"Long before the enactment of any statute in the arid states or territories, the custom of taking water had ripened into the right to use it [citing cases]. After the custom had been fully established, statutes were enacted for the purpose of protecting appropriators by furnishing a public record, thereby avoiding disputes over priorities. It cannot be said that these statutes were enacted for the purpose of enabling the appropriator to claim by relation to the date when work was begun, because that was the rule prior to any legislation upon the subject, if the work was prosecuted with reasonable diligence [citing cases]. But the rule of relation was in a measure uncertain, * * * in that what constituted reasonable diligence in the completion of the work was a matter within the sound discretion of the courts. Again, the appropriator who initiates his right by statutory notice is required to designate the amount of water claimed, the purpose for which it is to be used, if for irrigation, the land upon which it is to be applied, etc., thus affording information to other intending appropriators and giving constructive notice as to the amount of water which has already been claimed from the common source of supply. But where one has actually diverted water and is using it, the right to its use may, by analogy, be likened unto the doctrine that one purchasing real estate must take notice of the rights of those in possession, notwithstanding the recording statutes. Water diverted from a stream naturally diminishes the volume. One seeking to acquire the right to the use of water must take notice of the amount available and visible, and it must be conclusively presumed that he inquires into the extent of the supply from which the water is to be drawn, and how that supply has been diminished by others whose rights are prior in time. These statutes were never intended to destroy the right of appropriation by methods other than those defined by them. Their only effect is to deny the power of an appropriator who fails to file the notice required to claim as of the date of the beginning of his work; the penalty for such failure being to limit the right to the time when the water is actually applied and used. Long on Irrigation, § 39, expresses the principle in this language: `The statutes did not change the rule as to what constitutes an appropriation, but their object was simply to preserve evidence of the appropriator's rights, and to regulate the doctrine of relation back. In accordance with these principles, it is held that one who fails to comply with the statutory requirements, but who actually diverts water, and applies it to a beneficial use, in the absence of any *Page 53 conflicting adverse claim, acquires a valid title thereto, which cannot be divested by another appropriator, who complies with the terms of the statute after the former has completed his appropriation. * * * Where the statutory requirements have not been complied with the rights of the appropriator, which, but for the statutes, would relate back to the commencement of the work of appropriation, relate back only to the completion of the work; this being the only change wrought in the law by the statutes.'
"These views are sustained by numerous authorities: Murray etal. v. Tingley, 20 Mont. 260, 50 P. 723; Wells v. Mantes etal., [99 Cal. 583], 34 P. 324; Cruse v. McCauley (C.C.) 96 F. 370; De Necochen v. Curtis [80 Cal. 397], 20 P. 563, reaffirmed 22 P. 198; Burrows v. Burrows et al. [82 Cal. 564], 23 P. 146; Watterson v. Saldumbehere [101 Cal. 107], 35 P. 432."
This case was affirmed by the Circuit Court of Appeals, 159 F. 651, 86 C.C.A. 519. With respect thereto that court said:
"The circuit court held, and we think rightly, that it was not the purpose of the statute referred to to provide an exclusive method of appropriation, and that its only effect, was to take from an appropriator who failed to file such notice the right to claim an appropriation as of the date of the beginning of the work of diversion. * * * This is the construction placed upon similar statutes in other states requiring the filing and recordation of claims to water. Murray v. Tingley, 20 Mont. 260,50 P. 723; Wells v. Mantes, 99 Cal. 583, 34 P. 324;Watterson v. Saldumbehere, 101 Cal. 107, 35 P. 432."
It is thus seen that the federal courts regarded the California statute, requiring the posting and recording of a notice, and the Wyoming statute, the making of an application before the state engineer, in scope and purpose of substantially the same purport, differing only in detail. The same conclusion, in effect, was reached by the Supreme Court of Wyoming. Whalon v. North Platte Canal Colonization Co., 11 Wyo. 313,71 P. 995; C.B. Q.R. Co. v. McPhillamey, 19 Wyo. 425, 118 P. 682, Ann. Cas. 1913E, 101.
The Montana statute (Rev. Codes 1921, § 7100), provides that the appropriation must be for some useful or beneficial purpose, and that "any person hereafter desiring to appropriate the waters of a river, or stream * * * must post a notice in writing in a conspicuous plate at the point of intended *Page 54 diversion, stating therein" the quantity of water claimed, the purpose for which it is claimed, the means of diversion, date of appropriation, and name of the appropriator, and requiring a copy of the notice to be filed with the county clerk of the county in which the notice is posted. It provides the time within which the construction work must be done, and provides other requirements for a competent appropriation. It further provides: "A failure to comply with the provisions of this chapter deprives the appropriator of the right to the use of water as against a subsequent claimant who complies therewith, but by complying with the provisions of this chapter the right to the use of the water shall relate back to the date of the posting of notice" (section 7102), and that "persons who have heretofore acquired rights to the use of water shall within six months after the publication of this chapter, file in the office of the county clerk of the county in which the water right is situated" (section 7103), a verified declaration in writing setting forth the same facts as are required to be stated in the posted notice.
In considering this statute the Montana court, in the case ofMurray v. Tingley, 20 Mont. 260, 50 P. 723, said that the construction of the California statute by the Supreme Court of that state was logical and correct, and that the Montana statute should be construed in the same manner; that prior to the act a valid appropriation of water was made by an actual diversion and beneficial use, and that the doctrine of relation back was recognized by Montana prior to the statute. The court further said:
"Questions of priority, however, as well as of the original capacity, etc., of ditches, depended chiefly on oral testimony — on the memory of eye witnesses, often at fault through lapse of time. Confusion and insecurity to vested rights resulted. To obviate this as much as possible, the statute was enacted. It required a notice of location to be posted at the point of diversion, to apprise others who contemplated the acquisition of water rights from the same sream that the locator had taken his initial step to appropriate water. It required a recorded notice of appropriation, in order that a record might be supplied, giving the history in detail of each appropriation, which would inure to the benefit of their successors in interest, as well as to the appropriator's, aid not leave *Page 55 them dependent upon the mere memory of witnesses when conflicts should arise. In enacting this law the Legislature did not contemplate that one who failed to comply with the terms of the statute, but who, in the absence of any conflicting adverse right, had nevertheless actually diverted water and put it to a beneficial use, should acquire no title thereby. The essence of an appropriation — a completed ditch, actually diverting water, and putting it to a beneficial use — remained the same as it had been before. The object of the statute was to preserve evidence of rights, and also to regulate the doctrine of relation back. It follows that the statute controls this doctrine of relation back, and that one who seeks to avail himself of it since the passage of this act can only do so by a compliance with the statutory requirements.
"Again, we are satisfied that the Legislature did not intend that one who failed to comply with the statute, but who had nevertheless actually diverted water, could be deprived of it by another who complies with the statute at a time subsequent to the former's completed diversion. See Wells v. Mantes, 99 Cal. 583,34 P. 324, and Watterson v. Saldumbehere, 101 Cal. 107,35 P. 432."
In the case of Bailey v. Tintinger, 45 Mont. 154,122 P. 575, the Montana court stated that it was well known, that the law itself had its origin in the customs of miners and others in California; that these customs had ripened into well-recognized rules before there was any legislation upon the subject; that those customs were subsequently recognized as having the force of law by state and national legislation and by decisions of courts, and that the right of an appropriator to use water depended upon his appropriation of it by diversion and beneficial use. Murray v. Tingley, supra, is again considered and approved, as well as a number of California cases, and the doctrine of relation back again stated to be a prominent feature of the statute. The court finally observes:
"We are of the opinion that the act of 1885 intended: (1) To preserve the right which the appropriator had theretofore; and (2) to provide an additional method of making an appropriation. In other words, during the first period of our history above, there was but one method of making an appropriation, and that was by complying with the rules and customs of the pioneer settlers; while during the period since 1885, two distinct methods are prescribed — the first by complying with the rules and customs of the early settlers, and the second by complying with the terms of the statute." *Page 56
The court then approvingly quotes from 1 Wiel on Water Rights, § 364, where the author in referring to these statutes says:
"An appropriation may be made by a complete, actual diversion for a beneficial purpose, without following the statute, or else by proceeding under the statute."
To the same effect are also the Washington Decisions considering a statute similar to those of California and Montana.In re Water Rights in Crab Creek and Moses Lake, 235 P. 37. See, also, 17 A. E. Ency. Law, 498.
The Idaho statute (C.S. §§ 5568, 5569), provides that all waters of the state are the property of the state, that the appropriation must be for some useful or beneficial purpose, and that "all rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter. And after the passage of this title all the waters of this state shall be controlled and administered in the manner herein provided," and that "for the purpose of regulating the use of the public waters and of establishing by direct means the priority right to such use, any person, association or corporation hereafter intending to acquire the right to the beneficial use of the waters of any natural stream * * * shall, before commencing the construction * * * of the ditch, canal, * * * make an application to the [state engineer] for a permit to make such appropriation." Provisions are made as to what shall be set forth in the application and with respect to the commencement and completion of the construction work, filing of maps, etc., similar to our statute, and provides that when the appropriation is made in accordance with the statute the priority shall date from the date of the application for the permit. It, like the Wyoming and our statute, has provisions respecting the filing of protests, the hearing of them, and taking appeals. A consideration of this statute has been before the Supreme Court of Idaho in a number of cases. Uniformly it has been held by that court that there are two methods by which one may acquire a prior right to the use of water of a stream where he actually diverts and *Page 57 applies the water to a beneficial use although he may never have applied to the state engineer for a permit to do so. In CraneFalls, etc., Co. v. Snake River, etc., Co., 24 Idaho, 77,133 P. 661, it is said:
"Under the laws of this state there are two methods of acquiring water rights: One is to follow the statutory procedure and file an application for water with the state engineer, in which case there is a vested right which dates its inception from the time of filing the application with the state engineer. The other is to divert unappropriated water and apply it to a beneficial use without making application to the state engineer, which right dates from the application of the water to a beneficial use. The statutory method is the exclusive method by which the right can relate back to the filing of the application with the state engineer."
This case was approved by the same court in Reno v.Richards, 32 Idaho, 1, 178 P. 81, where the court again considered the doctrine of relation, and held that one could avail himself of such doctrine only by complying with the statute, and reaffirmed the doctrine that a valid appropriation without compliance with the statute could be made by actual diversion and beneficial use before intervening rights. There are numerous other Idaho cases to the same effect, among themNielson v. Parker, 19 Idaho, 727, 115 P. 488, Youngs v.Regan, 20 Idaho, 275, 118 P. 499, and Furey v. Taylor,22 Idaho 605, 127 P. 676. In Basinger v. Taylor, 30 Idaho, 289,164 P. 522, the court held that a permit issued by the state engineer was not a water right, and was not, in itself, evidence of the appropriation of water; that an appropriator of water seeking to invoke the doctrine of relation so that the date of his appropriation may relate back to the date of the initiation of his appropriation, must show a substantial compliance with all the provisions of the statute and a final consummation of the appropriation, and can invoke the doctrine only to the extent of a completion of such appropriation. To the same effect is the case of Washington State Sugar Co. v. Goodrich, 27 Idaho, 26,147 P. 1073, where it is stated that:
"The granting by the state engineer of a permit for the right to use the waters of this state, in and of itself secures to the applicant no right to the use of the waters applied for in said permit, unless there be a substantial compliance with each and every provision *Page 58 of the statute relating to or in any manner affecting the issuance of such permit and a fulfillment of the conditions and limitations therein, but a compliance with the conditions and limitations prescribed in such permit initiates a right to the use of the water in the applicant, and said right then becomes a vested one and dates back to the issuance of said permit."
I now come to the Utah statute (Comp. Laws 1907). It declares that the water of all streams, etc., in this state "is hereby declared to be the property of the public, subject to all existing rights to the use thereof" (section 1288x18); that "beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state (section 1288x20); that "rights to the use of any of the unappropriated water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise" (section 1288x5), and that the appropriation must be for some useful or beneficial purpose; that "any person, corporation or association to hereafter acquire the right to the use of any public water in the state of Utah shall, before commencing the construction, enlargement or extension of any ditch, canal, or other distributing works * * * make an application in writing to the state engineer" (section 1288x6). Provisions are made as to the contents of the application, the action of the state engineer, publication of notice, protests, time for commencement and completion of work, etc., the making of proof and the filing of maps, etc., and provides that the priority of the appropriation shall be "determined by the date of receiving the written application in the state engineer's office" (section 1288x17), which in all respects, in substance, are similar to the provisions of the Wyoming and Idaho statutes. The Utah statute was considered by this court in the case ofSowards v. Meagher, 37 Utah, 212, 108 P. 1112, where the essential features of the statute are set forth, and the case ofMurray v. Tingley, supra, and other cases therein cited, are approved, to the effect that a valid water right may be acquired even though there was no compliance with the statute regulating the appropriation of unappropriated waters, when the waters were actually diverted by means of a ditch or canal or other structure *Page 59 and applied to a beneficial use before the inception of any adverse statutory claim. This court further, and in harmony with the case of Nevada Ditch Co. v. Bennett, 30 Or. 59,45 P. 472, 60 Am. St. Rep. 777, stated that the three principal elements constituting a valid appropriation of water were: (1) An intent to apply the water to some beneficial use; (2) an actual diversion of it by means of a ditch, canal or other structure; and (3) an application of it to a beneficial use. This court then further stated:
"We think the filing of a written application with the state engineer, as required by the statute, is but declaring, or the giving of a notice of, an intention to appropriate unappropriated public water. The final step, and the most essential element, to constitute a completed valid appropriation of water, is the application of it to a beneficial purpose. Whatever else is required to be or is done, until the actual application of the water is made for a beneficial purpose, no valid appropriation has been effected. This was so before the statute, and it is still so under the statute. The filing of the application with the state engineer, as required by the statute, does not establish an appropriation of water. It but takes the place of, and is, the preliminary notice of intention to appropriate. Unless the construction of the works is commenced and completed within the time allowed by the engineer, and the water diverted and applied to the beneficial purpose of the proposed appropriation, the filing of the application is for naught, and no completed valid appropriation has been made."
Thus, this court, in such particular, considered the Utah statute in substance and effect to be the same as the statute of such other states regulating the appropriation of water, and gave it the same construction as did the courts of such other states.
In Long on Irrigation (2d Ed.) § 113, p. 195, the author says:
"With the development of the arid region and the increased demands made upon the water supply of the country with the increase of population, more attention has been paid to the regulation of the subject of the appropriation and use of water, and at present the subject is very largely regulated by statute, the statutory provisions being based essentially upon the doctrine of appropriation as developed by past experience.
"In a number of states, particularly under the recent irrigation codes, persons or corporations intending to appropriate water are *Page 60 required to make application to the state engineer for a permit to make such appropriation, the application stating the particulars of the proposed appropriation. It is the duty of the engineer to pass upon such application and to grant a permit to make the appropriation in a proper case, but to refuse such permit where the appropriation would conflict with existing rights, or might be detrimental to the public interests. Where an appropriation is made under a permit from the state engineer, the priority of the appropriator dates from the filing of the application in the engineer's office.
"The statutes prescribe in detail the procedure to be followed in making the appropriation. Blank forms are prepared and furnished by the state engineer to be used in making application for a permit, giving notice of completion of works, application of water to a beneficial use, etc. The details vary more or less in the several states. Such provisions are in force in Idaho, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming. Wyoming was the first state to enact laws of this type, and the method of appropriation provided for is, for this reason, sometimes called the Wyoming system. The legislation of the other states has been largely modeled on that of Wyoming.
"With reference to the appropriation of water since the adoption of the recent legislation, the Supreme Court of Idaho recently said: `Under the laws of this state there are two methods of acquiring water rights: One is to follow the statutory procedure and file an application for water with the state engineer, in which case there is a vested right which dates its inception from the time of filing the application with the state engineer. The other is to divert unappropriated water and apply it to a beneficial use without making application to the state engineer, which right dates from the application of the water to a beneficial use. The statutory method is the exclusive method by which the right can relate back to the filing of the application with the state engineer.'
"The statutory provisions do not substantially change the former law as to what constitutes a valid appropriation of water. The essentials of an appropriation, the intent, the actual diversion, and the application to beneficial use, are unaffected. And the filing of an application with the state engineer for a permit does not establish an appropriation, but merely takes the place of the posting of the notice previously required."
As is thus seen, the author, as to the proposition that the method prescribed by the statute to make an appropriation of water is not exclusive, does not place the Utah statute in a class different from that of Idaho, Wyoming, and other states, but in such respect makes no distinction. *Page 61
Notwithstanding Sowards v. Meagher, decided in 1910, for 15 years unmodified by either judicial or legislative action, has stood as the correct construction of the statute, nevertheless, because of the words, "and not otherwise," in the statute (which were in the statute when Sowards v. Meagher was decided), it now is urged that the statute is materially different from those of Idaho, Wyoming, and other states, and hence requires a different construction, and one that the method of making an appropriation prescribed by the state is exclusive, and that no valid appropriation may be made without a substantial compliance with the statute. Such a construction, as it seems to me, sticks too much in the bark, and does not go to the pith of the statute, and does not sufficiently regard the essentials, scope, and purpose of it. Certain it is, and as stated by Long, that these statutory provisions do not substantially change the law as to what constituted a valid appropriation, and that the essentials of an appropriation, the intent and the actual diversion and application of water to a beneficial use, are by these statutes unaffected. I think that just as true of the Utah statute as of the Idaho and Wyoming statutes. If the interpretation and construction of the Idaho and Wyoming statutes, that the scope and purpose of them are like those of the California statute, to preserve the evidence of water rights and title and to regulate the doctrine of relation back, are correct, as I think they are, then when the whole of the Utah statute and its general scope and purpose and its essentials are considered and found to be, as they are, similar to those of such other states, especially of Idaho and Wyoming, I think it follows that our statute requires the same construction and interpretation as is given such other statutes. In the interpretation and construction of statutes the primary rule, of course, is to ascertain and give effect to the intent of the Legislature, which intent and meaning must primarily be determined from the language of the statutes themselves; and in ascertaining such intent every word and phrase and each and every part of the act should be considered and given effect. But in doing so it is not proper to consider a word or *Page 62 phrase in and of itself or disconnected from other parts of the act. That effect may be given to every part of the act in accordance with legislative intent, all the language of the act must be considered and brought into accord. For obvious reasons it is not proper or safe to base a construction upon a particular word or phrase. It is an established rule in the construction or interpretation of statutes that the intent of the Legislature is to be deduced from a view of the whole and every part of the statute taken and compared together. It also often happens that the true intent of the Legislature, though obvious, is not expressed by the language employed when that language is given merely its literal meaning. It is also another familiar rule that sometimes words ought to be and are made more subservient to the intent, not the intent to the words; and that statutes are not always expounded according to the letter but according to the meaning and intent of them. To give the statute the construction contended for I thus think too much importance is attached to the mere literal meaning of the words "and not otherwise." When such words are considered with the whole statute I think they but mean that in making an appropriation and to avail one's self of the benefits and advantages afforded by the statute and of a relation back — a priority from the filing of the application for a permit — safeguarded and regulated by the statute, the method prescribed by it must be followed. If, however, one does not seek to so avail and protect himself, he, nevertheless, may make a valid appropriation by actual diversion and beneficial use without compliance with the statute, but in such case his priority will date only from actual diversion and beneficial use. Such seems to be the view entertained by the courts considering statutes of similar purport and having phrases and clauses of as much mandatory character of an exclusive method of appropriation as our statute. In such respects I think the statute here is no more mandatory or forbidding than is the statute of Idaho. The Utah statute says, the "rights to the use of the unappropriated public water in the state may be acquired by appropriation, in the manner hereinafter provided, and not *Page 63 otherwise." The Idaho statute, "all rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter. And after the passage of this title all the waters of this state shall be controlled and administered in the manner herein provided." Both provide that any person, etc., thereafter to acquire a right to the use of any public waters "shall, before the commencement" of the construction of diverting works, "make an application in writing to the state engineer for a permit," and contain similar provisions as to the contents of the application, the beginning and completion of the construction and diverting works, applying the waters to a beneficial use, the making of final proof and filing of maps, etc., which if done in accordance with the provisions of the statute, the priority of the appropriation is to date from "the date of receiving the written application in the state engineer's office." From the provision of the Idaho statute that all rights to divert and use water "shall hereafter be acquired and confirmed under the provisions of this chapter," and be controlled and administered in the manner therein provided, it may as well be argued that such necessarily implies that the right may not be acquired otherwise than as provided by the act, as to argue that because of the words "and not otherwise" in the Utah statute the method there prescribed is exclusive.
Nor is the Utah statute, as I think, more mandatory than the California or Montana statutes declaring that a person, etc., desiring to appropriate water "must post a notice in writing" and file a copy thereof for record, and that a failure to comply with the statute "deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith." I think such phrases in the California, Montana, Idaho, and Wyoming statutes are as forbidding and restrictive as the words "and not otherwise" in the Utah statute.
It seems clear to me that the essentials of an appropriation, and, as stated in Sowards v. Meagher, supra, are not changed or affected by the statute; that when those are complied *Page 64 with before intervening rights a valid appropriation is made; that the general purpose of the statute, as stated by the courts, is to preserve the evidence of water rights and claims, provide a record of verified declarations of intention to appropriate water, protect an intending appropriator in his initiatory steps, and to apply and regulate the doctrine of relation back, and that one may not avail himself of such advantage and protection unless the statute is substantially complied with. In this connection it must be observed that the engineer's proceedings are ex parte, and are neither in form nor in substance judicial in their nature (Waha-Lewiston L. W. Co. v. Lewiston-Sweetwater Irr. Co. [C.C.] 158 F. 143); that the permit from the state engineer is of no avail against existing owners if it infringes their right (1 Wiel, § 410); that the permit when granted is granted subject to all existing and vested rights; and that the waters of the state are by the statute declared to be the property of the public, "subject to all existing rights to the use thereof."
The statute in question was passed in 1903. It may well be presumed that, since the adoption of the statute, and especially since the decision of Sowards v. Meagher in 1910 construing it, appropriators in reliance upon it have made appropriations of water by actual diversion and beneficial use without compliance with the statute, whose rights, if the construction of the statute contended for shall prevail, will be jeopardized, though for years they, at great expense by means of ditches, canals, and other structures, diverted and beneficially used waters and cultivated fields and orchards and built homes, by some one thereafter making an application to the state engineer seeking to claim such waters. I think such consequences ought to be avoided, and for reasons upon which the rule of stare decisis is founded it ought here to be applied; and, as an original proposition, no such construction should be given the statute as forbids or prevents the engineer, in such case, from denying an application or refusing a permit, or deprives the courts of power to protect and safeguard such acquired and vested rights.
Now, as to the merits of the cause as presented for review. *Page 65
Choke Cherry creek, Pass Canyon creek, Little Pole creek, and Big Pole creek run from the mountains or foothills in a westerly or southwesterly direction to the ranch and townsite of the plaintiff. The creeks unite into one main channel before reaching the ranch. Along the creeks and before the union of them there are a number of springs referred to by the plaintiff as springs Nos. 1 to 12, both inclusive. All of them are tributary to and find their way into one or the other of the creeks and augment the waters coursing in them. For 20 years or more prior to any of the claimed rights of the defendant the predecessor of plaintiff had appropriated by actual diversion by means of ditches and canals and beneficially used all the waters of all the creeks, including the waters of the springs, to irrigate from 500 to 700 acres of lands upon which various crops were raised, and for live stock and townsite purposes. There is no dispute as to such diversion and continued use of all of such waters by the predecessor of the plaintiff up to the year 1910, a period of more than 13 or 14 years. Between 1908 and 1910 the predecessor of the plaintiff, to better conserve and utilize these waters, at an expense of about $75,000 constructed a sort of cement conduit or channel of rock and cement from near the ranch easterly towards the foothills a distance of about 4 miles. At the eastern end of the main conduit or channel a branch conduit was run towards the north and intercepted the waters coursing in Choke Cherry creek, Pass Canyon creek, and Little Pole creek, and a branch to the south to intercept the waters of Big Pole creek. Another branch was also extended from the main channel in a southerly direction to intercept and gather other waters to the south. The waters so intercepted from the creeks were thereafter, by means of the main channel, carried to plaintiff's ranch and there distributed and beneficially used from 1910 up to the commencement of this action and thereafter, except in high-water periods when from one third to a half of the waters of such creeks were coursed in the natural channels to plaintiff's ranch. The extensions or branches running to the north and south of the main channel are a considerable distance *Page 66 east of the springs in question. It is the contention of the respondent that, after these cement channels or conduits were constructed and the waters of the creeks intercepted and carried through these conduits, none of the waters of the springs, all of which are situate to the north of the main conduit and west of the north extension conduit, found their way into any of the cement constructed conduits or channels, and because the waters by means of the cement conduits having been so taken out of the natural channels of the creeks above the springs, the flow of the natural channels of the creeks was so diminished that the waters from the springs finding their way into the natural channels below did not reach plaintiff's lands, but merely coursed down the natural channel for a distance of a mile or a mile and a half from plaintiff's ranch and there were lost; and hence all of such waters of such springs were abandoned by the plaintiff and its predecessor, and were not used by any one from 1910 until 1918, when the defendant claimed to have made appropriations of waters from sources of some of these springs. It was the contention of the plaintiff that none of such waters were abandoned by it or by its predecessor, and that after the construction of the cement conduits the waters of the springs through the natural channels still mingled with other waters coursing in the natural channels, especially in high-water periods, and so commingled with such other waters reached plaintiff's lands and were there beneficially used by it and its predecessor every year from 1910 to 1918 and thereafter.
In 1906 the predecessor of plaintiff filed an application with the state engineer to appropriate all the waters of the various creeks mentioned, and a certificate of appropriation was issued to it in 1916. All of these appropriations were made along the creeks but above the springs, and at or near the intersection of the cement conduits running to the north and south of the main conduit. The plaintiff's predecessor by such appropriation undoubtedly acquired all the waters of these creeks at and above such diversion points, but the claim is made, and I think rightly, that it thereby did not *Page 67 acquire the waters which found their way into the natural channel below such diversion points, nor did the court award plaintiff any waters of the springs in virtue of such appropriation. In the fall of 1917 the predecessor of the plaintiff by deed conveyed to the plaintiff all rights, title, and interest in and to the lands, townsite, and waters, including the springs in question, which were owned or possessed by plaintiff's predecessor. In February, 1918, the respondent Hooppiania made a homestead entry of the S.E. 1/4, the N. 1/2 of the S.W. 1/4, and the S.W. 1/4 of the S.W. 1/4 of section 25, township 3 south, range 8 west, and lot 3 in the N.W. 1/4 of the N.W. 1/4 of sec. 30, township 3 south, range 7 west. The main cement conduit of the plaintiff coursed through the north half of section 36, township 3 south, range 8 west and through the northwest quarter of section 31, township 3 south, range 7 west, section 36, lying immediately south of section 25. The natural channel of Big Pole creek coursed westerly, north of plaintiff's main conduit, through sections 31 and 36 and south of the south boundary line of the respondent's homestead. Respondent's cabin on his homestead is situate in the north half of the southeast quarter of section 25, and the lands claimed to have been cultivated and irrigated by him are situate west of his cabin and in the north half of the southwest quarter of section 25. East of his cabin about 60 feet are located the springs called by the plaintiff Nos. 1, 2, and 3, but which are called by the respondent the Conie springs. Springs 4, 5, and 6 are located on the respondent's homestead, but it is not claimed by him that he had appropriated any waters from these springs. Springs 7, 8, and 9 are located east of respondent's homestead and on the public domain. It is claimed by the respondent that he had appropriated the waters of spring No. 7, which he called the Wild Rose spring; but it is not claimed by him that he had made any appropriation of any of the waters of springs Nos. 8 and 9. Springs 10, 11, and 12 are located in the northwest quarter of section 31. The respondent does not claim to have appropriated any waters from spring No. 10. He does claim to have appropriated all the *Page 68 waters of springs 11 and 12 which he calls the Holy Cross springs. Springs 11 and 12 are situate close to Big Pole creek, the largest of which is only about 12 feet from the center of the natural channel of the creek. The flow of the waters of springs 11 and 12 is about .33 of a second foot; of the Conie springs about .02 of a second foot, and of the Wild Rose spring about .033 of a second foot. Section 36, and section 31, upon which springs 10, 11, and 12 are located, are owned by the plaintiff.
The respondent claims and gave testimony to show that he, in the early part of March, 1918, made a dirt dam in the natural channel of Big Pole creek some distance west of the Holy Cross springs (or springs 11 and 12), and diverted the waters from the wash or natural channel into an old dirt ditch many years ago constructed by the predecessor of the plaintiff, and about 100 feet west of there made another dirt dam across the dirt ditch, and by means of a plow furrow ditch diverted the water from the old dirt ditch and coursed it in a northwesterly direction, as he testified, about 100 yards, and spread it on a patch of June grass of 2 or 3 acres on his homestead. He does not claim that up to April 25, 1918, he had made any further or other use of such waters. About the same time, in March, 1918, he testified, he ran a plow furrow ditch from spring No. 7, or Wild Rose spring, and carried the waters to his lands, and prior to April 25, 1918, irrigated about 5 acres of plowed lands which he had planted to vegetables just westerly of his cabin. About the same time, in March, 1918, he testified he constructed a small pipe line from springs 1, 2, and 3, or the Conie springs, situate about 60 feet easterly of his cabin, which waters were principally used by him for culinary purposes. On the 16th of April, 1918, the plaintiff, west of springs 11 and 12, or the Holy Cross springs, constructed a ditch from Big Pole creek to its main cement channel, and coursed the waters from springs 11 and 12 running in the natural channel into its main cement channel. Such diversion by the plaintiff was between the springs and where the respondent claims he made his diversion in March, 1918. The plaintiff's evidence *Page 69 shows, and a number of witnesses testified thereto, that when it in April, 1918, so diverted the waters from Big Pole creek into its main cement channel, the respondent had not up to that time diverted or attempted to divert any waters from Big Pole creek or from springs 11 and 12, and that his diversion of waters out of Big Pole creek or from springs 11 and 12 were made after plaintiff's diversion. On April 25, 1918, the plaintiff without waiving any existing rights which it and its predecessor theretofore had acquired in and to the waters of the springs, filed an application with the state engineer to appropriate all the waters of the springs in question from No. 1 to No. 12, both inclusive, which included the springs the waters of which are claimed to have been appropriated by the respondent. On May 3, 1918, the respondent Hooppiania filed an application with the state engineer to appropriate all the waters of Holy Cross springs (springs Nos. 11 and 12), Wild Rose spring (spring No. 7), and Conie springs (springs Nos. 1, 2, and 3). The diversion dam made by the respondent was destroyed by the plaintiff and replaced by the respondent, and the diversion dam of the plaintiff destroyed by the respondent and replaced by the plaintiff, at different times. In June following, 1918, this lawsuit was commenced by plaintiff alleging a right in and to the use of all the waters of all the springs. The respondent counterclaimed, claiming a prior right to the use of all the waters of the Holy Cross, Wild Rose, and Conie springs. The trial was had in May, 1923. Between the commencement of the action and the trial, and after the filing of plaintiff's application with the state engineer in April, 1918, the respondent, in 1920 and 1921, abandoned his original diversion point of Big Pole creek and made another diversion point nearer the Holy Cross springs and above the diversion point made by the plaintiff in April, 1918, and from such diversion point constructed another ditch and connected it with the ditch claimed to have been constructed by him in March, 1918. Between the commencement of the action and the trial, the respondent broke up and irrigated more lands, and at the time of the trial had under cultivation about 22 acres for *Page 70 which he claimed and was awarded a water right from the springs Holy Cross, Wild Rose, and Conie. The plaintiff, from the time of its application in April, 1918, until the day of the trial, kept its application alive. Up to the commencement of the action it was not claimed by the respondent that he had used any of the waters of the Holy Cross springs on any plowed or cultivated lands, or that he had made any use whatever of such waters except to spread them over a patch of June grass of about two or three acres which he testified were on his lands, but after the action was commenced and up to the years 1920 and 1922 he had carried some of the waters from the Holy Cross springs upon his cultivated lands lying westerly of his cabin. While the respondent in a portion of his testimony stated that the grasses upon which the waters of Holy Cross springs were first applied were wild timothy, yet, in other portions of his testimony he in effect admitted the grasses were only what is known as June grass, which, that time of year, was growing and generally grew all over sections of that country. The testimony of his witnesses as well as all other evidence in the case shows that the grasses were nothing but June grass which grows without water, but, as some of the witnesses testified, grows better with water; and it was shown, substantially without dispute, that June grass for hay or fodder has no feed or other property value, nor did the respondent at any time use any of the grass claimed to have been watered by him as hay or fodder. He testified the only use he made of such grass was: "I feed it to my stock." But it was not shown what stock he had or pastured on such grass in 1918, or at any time. He testified the land was not fenced, and that he kept sheep and cattle off it. I recognize that spreading water over and irrigating wild grass lands used for pasture or hay or both is applying water to a beneficial use. But to constitute such use requires something more than merely spreading water over a patch of June grass, without a further showing of pasturing it or otherwise making some substantial beneficial use of it. He and his witnesses testified that the ditch taken out by him from the channel of Big Pole creek and with *Page 71 which the waters flowing from the Holy Cross springs were conveyed on this patch of grass land on his homestead was only 100 yards in length, and that it took the respondent and another only a couple of hours to construct it. But according to maps prepared by his surveyor and put in evidence by respondent and in accordance with his testimony that the diversion point of that ditch in March, 1918, was correctly represented on such maps, the distance from such diversion point to the south and nearest boundary line of plaintiff's lands was about 800 feet, and about 3,000 feet from his diversion point to his cabin and cultivated lands. If it be true that the ditch constructed by the respondent in March, 1918, was only 100 yards in length, as testified to by him and his witnesses, then none of the waters from springs 11 and 12 were conveyed on any part of plaintiff's lands prior to the filing of the application of the plaintiff in the state engineer's office in April, 1918; and if the respondent in March, 1918, and prior to the filing of such application of the plaintiff, diverted any of the waters of Holy Cross springs, he diverted and spread such waters on lands of the plaintiff, assuming, as testified to by him, that the ditch taken out by him in March, 1918, was only about 100 years in length. After this action was commenced the respondent undoubtedly diverted and by a new and an extension of his first ditch carried waters from these springs on his lands; but that, as against plaintiff's filing, cannot avail him.
The court found that during the years 1918 to 1921, both inclusive, the respondent broke up and tilled certain lands of his homestead, and in the year 1921 he had broken and tilled about 22 acres; that about the year 1920 he extended the ditch theretofore constructed by him, and during the irrigation season of 1921, by means of his ditch, conveyed all the waters of the Holy Cross springs and used them on his tilled lands in the growing of crops. The court thus awarded to the respondent all the waters of the Holy Cross springs from the 1st to the 15th of April, and from the 1st of July to the 1st of October of each year, and all the waters of the Conie springs (Nos. 1, 2, and 3), and of the Wild Rose spring *Page 72 (No. 7), each year from the 1st of April to the 1st of October. For all other seasons of the year the waters of such springs were awarded to the plaintiff. All the waters of springs Nos. 4, 5, 6, 8, 9, and 10 were awarded to the plaintiff from the 1st of January to the 31st of December of each year. The waters so awarded to the respondent were awarded to him on the theory that whatever right, title or interest the plaintiff and its predecessors may theretofore have had in and to such waters were, prior to March, 1918, abandoned by the plaintiff and its predecessor; and that neither the plaintiff nor its predecessor had used any such waters for more than seven years prior to March, 1918, when the court found the respondent had diverted and beneficially used the waters so awarded to him. The court awarded the waters of the Holy Cross springs to the plaintiff during high-water periods on the theory that during such times the waters of such springs each year after 1910 and up to the time of the trial were continued to be commingled with other waters flowing in the natural channel of Big Pole creek and by such means, through the natural channel, were carried to plaintiff's lands and there beneficially used; but in periods other than high water, the court found that no waters of any substantial flow were carried in the natural channel of Big Pole creek, except what flowed in the creek from springs 11 and 12, and that such waters were not sufficient in volume or quantity to be carried, and were not carried, to plaintiff's lands, and hence in periods other than in high water were not used by it or its predecessor from 1910 to April, 1918.
Though it be assumed that the respondent in March, 1918, diverted, and by means of a ditch carried, waters of springs 11 and 12 from the natural channel of Big Pole creek, still the respondent was entitled only to so much water as he had actually diverted and beneficially used prior to and up to the filing of plaintiff's application in the state engineer's office April 25, 1918. At most, such quantity of water so diverted and used by him from such springs was only sufficient to irrigate between two and three acres of land. However, it is evident that the court awarding to the respondent all the waters *Page 73 of springs 11 and 12 during the periods as was done did so by giving the respondent the benefit of the doctrine of relation back; that is, the court did not award to the respondent only the waters which he had actually diverted and beneficially used prior to and up to the time of the filing of plaintiff's application in the state engineer's office April 25, 1918, but awarded him waters from this source to irrigate lands for growing crops which he had broken up and tilled after the filing of plaintiff's application and after the commencement of this action. In that I think the court erred. The respondent's application in the state engineer's office not having been filed until after the plaintiff's application was filed, he was not, as against the plaintiff, entitled to the benefit of the doctrine of relation back.
But, with some hesitancy, I am constrained to go a step further. While the plaintiff testified that he, in March, 1918, diverted and by means of a ditch 100 yards in length carried waters of springs 11 and 12 on his lands, and there, that year, spread them over a patch of grass land of two or three acres — but made no further or other use of such waters during that year — still I think by the clear and manifest weight of all the evidence the respondent either made no diversion at all of such waters in March, 1918, and prior to the filing of plaintiff's application in April, 1918, or if he then diverted any of such waters, he merely spread them over lands of the plaintiff without its knowledge or consent and without any beneficial use to the respondent or to any one in privity with him. Under such view, and the respondent not being entitled to avail himself of the doctrine of relation back, he is not entitled to any of the waters of springs 11 or 12; and to such effect should the judgment be.
The situation as to springs 1, 2, 3, and 7 (the Conie and Wild Rose springs) is different. I think he is entitled to the waters of such springs as awarded him. Though prior to 1910 the predecessor of the plaintiff had diverted and beneficially used such waters, nevertheless, the great weight of the evidence shows that since that time and up to 1918 such waters were not used by the plaintiff or its predecessor nor *Page 74 by any one, and hence in March, 1918, were subject to appropriation when the respondent diverted and by means of ditches and a pipeline, carried such waters to his lands and there beneficially used them prior to the filing of plaintiff's application in the state engineer's office in April, 1918.
As already stated, springs 4, 5, and 6 are on the homestead of the respondent. The waters of these springs were awarded to plaintiff; but the judgment in such particular is not assailed by the respondent. He only assails the judgment awarding the waters of the Holy Cross springs to the plaintiff from April 15 to July 1st, and from October 1st to April 1st. Hence, whether springs 4, 5, and 6, being on the respondent's April, 1918, involves a question not presented for review.
I therefore think the judgment should be modified as herein indicated, awarding the waters of springs 11 and 12 to the plaintiff, and of springs 1, 2, 3, and 7 to the respondent; the judgment awarding the waters of springs 4, 5, 6, 8, 9, and 10 to the plaintiff not being challenged should stand as rendered.