I concur in the opinion of Mr. Chief Justice Gideon that chapter 67, Sess. Laws of Utah 1919, provides an exclusive method for the appropriation of public water in the state of Utah. The very language and purpose of the act, when construed in connection with the acts which it superseded and repealed, demonstrates conclusively that the purpose was to provide an exclusive method of appropriating water and securing a record title thereto. I do not deem it necessary to enter upon a review of the statutes of neighboring states, nor the decisions of their courts interpreting the same, for the reason that the review made by my associate, Mr. Justice Straup, and the decisions referred to by him in his dissenting opinion conclusively demonstrate that the statutes of such states are materially different from our own, and the decisions interpreting the same have no bearing whatever upon the question presented on this appeal. We only need to refer to the language of the present Utah statute and the statutes which preceded it in order to determine that the present statute provides an exclusive method of appropriating public water in this state.
The first attempt at legislation providing a method for the appropriation of water was the act of 1897, compiled in *Page 40 Rev. Stat. 1898, commencing with section 1268. That statute provides that an appropriation of water shall be made by posting a notice at the point of diversion and a copy thereof at the nearest post office, and also provides that the notice shall be filed for record in the office of the county recorder. The notice was to contain the number of cubic feet per second, the purpose and intended use, if for irrigation the number of acres to be irrigated, and the means of diversion whether pipe, flume, or ditch, and the size thereof, together with the date of appropriation and the name of the appropriator. The work of construction was to be prosecuted with reasonable diligence. Section 1271 is significant in this connection as showing the principal vice of the act. I quote the section at length:
"A failure to comply with the provisions of this title 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 title, the right to the use of the water shall relate back to the date of posting the notice."
The principal vice of the section quoted rests in the fact that it recognizes the right to make an appropriation by a method or methods other than that provided in the act. For instance, the act was susceptible of the interpretation that if a person initiated an appropriation by simply entering upon the banks of a stream or water course and diverted water therefrom and applied it to a beneficial use, his right would be superior to that of one subsequently complying with the act. In such case there would be no record whatever of the appropriation, and no means of supplying a record without resorting to litigation with all the uncertainty, hazard, and expense incident thereto. Under that statute the interpretation contended for by Mr. Justice Straup and Mr. Justice Frick, who also dissents from the opinion of the Chief Justice, could well be sustained. But the Legislature of 1903 was dissatisfied with that character of legislation, and enacted a law to remedy the mischief. It created the office of state engineer; it inaugurated a thorough system by which an appropriation could be initiated, title secured, and public record thereof made, thereby abrogating the old system with all its attendant *Page 41 evils and opportunities for perjury and other forms of abuse. The method presented for appropriating water commences with chapter 100, Sess. Laws 1903, § 34, which section furnishes the key for interpreting all that follows down to and including section 46. Section 34 reads as follows:
"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. The appropriation must be for some useful or beneficial purpose, and, as between appropriators, the one first in time shall be first in right."
The subsequent sections, to and including section 46, mark the successive steps in the course of procedure from the date of filing the application with the state engineer to the issuance by him of a certificate of appropriation to the appropriator or his assignee or successor in interest. Record is made of every step taken and opportunity afforded for the adjustment of any contested right. The certificate of appropriation is not issued until the water has been applied to a beneficial use and the provisions of the statute fully complied with. Nowhere in the entire act is there the slightest recognition of any other method of appropriation, as appears in the bungling, antiquated method provided in the act of 1897.
The act of 1903 was amended in certain respects, immaterial here, in the Session Laws of 1905, without changing the number of the sections. Chapter 108. Section 34 of that act is identical with section 34 of the act of 1903, although, as before stated, other sections were amended. The same language is employed in Comp. Laws 1907, § 1288x5. The changes made in other sections after 1903 also appear in the compilation.
In 1909 (Laws 1909, c. 62), the act again came under review by the Legislature. Amendments were made to other sections, but nothing was done affecting the question under review here. In 1911, section 1288x5, supra, was amended with other sections, but the amendment was a proviso added to the section, leaving the language heretofore quoted unaltered in any particular. The fact that the section was amended in other respects shows conclusively that the Legislature *Page 42 had the section under review, but did not deem it expedient to change the language thereof, which implies an exclusive method of appropriation. Sess. Laws 1911, p. 143.
In 1915 (Laws 1915, c. 83), the Legislature again amended other sections of the act, but made no change whatever in the section in question, or any other section affecting the exclusive terms of the act.
In the session of 1917 the Legislature compiled the laws without change or alteration. Comp. Laws 1917, § 3450.
In 1919 the Legislature enacted the law as it now stands, repealing all prior laws relating to the appropriation of water and acquiring title thereto. Chapter 67, Sess. Laws 1919, p. 177. Section 41 of the act, page 188, declares certain fundamental principles pervading the whole act and immediately precedes the mode of procedure necessary to procure title. The section reads:
"Rights to the use of unappropriated public water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise. The appropriation must be for some useful and beneficial purpose, and, as between appropriators, the one first in time shall be first in right; provided, that when a use designated by an application to appropriate any of the unappropriated waters of the state would materially interfere with a more beneficial use of such water, then the application shall be dealt with as provided in section 48 hereof."
The history of the legislation upon this subject, as above set forth, discloses the fact that the statute involving the question now before the court has been under review at eight different sessions of the Utah Legislature. The law, as originally enacted in 1903, has been amended and changed in divers respects, immaterial as far as the question here is concerned, but the manifestly exclusive features of the method of procedure to procure title have never been changed.
The question is, if the Legislature of the state of Utah had the power to enact an exclusive method of initiating an appropriation of water, and procuring a title thereto, what else could it have done or what more could it have said than has been done and said through all this course of legislation down to the present time? If plain, emphatic, unequivocal language *Page 43 is not sufficient to express the intention of the Legislature, in what manner and by what means can the Legislature express its intention? If there were a single line, word, or thought anywhere in the act inconsistent or in conflict with the express declaration of the Legislature at the very starting point of the method of procedure mapped out by the Legislature, I would concur in the suggestion that we should resort to rules of construction in order to determine the intention of the statute; but the truth is the statute is so plain from the beginning to the end of the whole course of procedure that there is no occasion for resorting to rules of construction. Nevertheless, assuming that construction is necessary, I unhesitatingly adopt the rules announced by my associates who disagree with the majority as to the proper interpretation of the statute. Mr. Justice Straup states the rule as follows:
"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 phrase in and of itself or disconnected from other parts of the act."
Mr. Justice Frick states the rule in the following language:
"All, I think, will agree that it is a cardinal canon of construction that all words and phrases must, if possible, be given effect. While it is true that words must be given their usual and ordinary meaning, it is equally true that there are many instances where particular words or phrases must be given a restricted or enlarged meaning so as to harmonize all the provisions of a particular act and to give all of it proper effect."
But it is earnestly insisted that the majority of the court attach undue importance to the phrase "and not otherwise." For my part I disclaim any intention of attaching undue importance to any particular word, phrase, or sentence in the statute. My position is, that when successive sessions of the Legislature, running through a period of 21 years, have tenaciously adhered to a certain form of procedure, and that form of procedure from beginning to end is manifestly exclusive of *Page 44 every other method, it is the imperative duty of this court when the statute is brought in question before us to interpret it according to its plain meaning and intent, such meaning and intent to be ascertained by applying the very rules announced by my associates who disagree with the majority as to the meaning of the statute. If we appear to attach special importance to particular words, phrases or sentences it is because the Legislature itself appears to have done so when the statute was first enacted, and continued to do so throughout all the vicissitudes of subsequent legislation upon the subject. Those who disagree with us upon the theory that we are placing too much stress upon certain portions of the act, without giving due consideration to other parts, ought, at least, to point to some part of the act which we have ignored or have not given due consideration. Until they have done so we feel amply justified in contending that the first sentence in section 41, above quoted, is absolutely mandatory and means exactly what the language implies. But it is contended that the statute also declares that the right of the public to the waters of the state is "subject to all existing rights to the use thereof" (Laws 1919, c. 67, § 1), and also declares that "where there is no unappropriated water in the proposed source of supply, or where the proposed use will conflict with prior applications or existing rights * * * it shall be the duty of the state engineer to reject such application" (Laws 1919, c. 67, § 48).
It is quite clear to the understanding of the writer that the term "existing rights" used in the statute means rights existing either at the time when the act became a law, which rights, of course, the act could not destroy, or rights existing under a former application made in pursuance of the act. To assume that the term "existing rights" means rights accruing after the act became a law, by merely entering upon the water source, diverting the water thereof, and applying it to a beneficial use without filing an application with the state engineer, would be begging the question and assuming as a fact the sole matter in dispute. I and my associates with whom I agree are just as tenacious in the matter of preserving *Page 45 vested and existing rights as our dissenting associates can possibly be, but we are equally tenacious in holding that our interpretation of the statute will not, and cannot, disturb such rights when the source thereof is properly understood. To make our meaning perfectly clear: If a person had initiated a right under the old system prior to the act of 1903 and was prosecuting the same with reasonable diligence, or had prosecuted it to completion, such right would be an existing right and not within the purview of the act; or, if a person had made a prior application to the state engineer after the passage of the act and such application had been kept alive under the terms of the act, the right would be an existing right, and any subsequent application for the same right should be rejected by the state engineer as provided in the statute. Any other interpretation, in my opinion, is not permissible when the statute is considered as a whole. The same may be said as to the term "unappropriated water," stressed by dissenting associates as of special significance. In our opinion that term, as used in the statute, means water not already appropriated in compliance with the act or some previous act or custom while the same was in force.
But it is also contended that this court, in Sowards v.Meagher, 37 Utah, 212, 108 P. 1112, considered the statute in question, and that for 15 years that case has stood as the correct construction of the statute without modification by either the court or the Legislature. It would be unpardonable in me, or any other member of this court, to willfully ignore or disregard any former decision of this court, if such decision is, in any sense, authority for either side of the controversy. The case referred to was a litigation between two claimants under applications filed in the office of the state engineer. The applications were for water to be applied on lands on the Uintah Reservation, which was not restored to the public domain by proclamation of the President until August 28, 1905. An act of Congress (33 Stat. 1069), had, however, been previously passed providing for restoration to the public domain at such time as the President would *Page 46 by proclamation direct. The defendants filed their applications with the state engineer on July 31 and August 19, 1905. Plaintiff filed his application August 28 of the same year, the very day the reservation was open for entry by the President's proclamation. The principal question was whether an application for water to be used on land not open to entry was valid. If valid, defendants' applications were superior, because first in time. The complaint of plaintiff stated the facts which were, substantially, as above set forth. The state engineer had found in favor of defendants. On appeal to the district court a demurrer to the complaint was sustained. On appeal to this court the judgment of the lower court was affirmed. In concluding its opinion, on page 225 of the report (108 P. 1117), the court said:
"We are of the opinion that, upon the face of the complaint, it is not made to appear that the engineer wrongfully or erroneously approved the defendant's applications, which were prior in time."
Accordingly, the judgment sustaining the demurrer was affirmed. Such, in substance, were the issues in that case, and such was the decision thereon. Whether or not the statute provided an exclusive method of appropriation was in no sense involved, for both parties were claiming under applications filed with the state engineer. The court decided in favor of the prior application. The decision was right and in strict compliance with the statute.
It may be admitted once for all that, as between two litigants claiming a right to the use of water, neither of whom have filed an application with the state engineer, the one in possession would have the better right, and such right would be upheld in a court of justice. Mt. Olivet Cemetery Ass'n et al. v. SaltLake City et al., 65 Utah 193, 235 P. 876 (a very recent decision not yet [officially] published). In support of that doctrine Mr. Justice Cherry, who wrote the opinion in the case above referred to, quoted an excerpt from 1 Wiel on Water Rights (3d Ed.) § 411, which was not only pertinent to the point to which it was applied in that case, but is also pertinent to the issue presented in the case at bar. I quote the excerpt as it appears in the Mt. Olivet Case: *Page 47
"The older statutes, based on the California Civil Code, were merely to regulate the doctrine of relation, while the new statutes described in this chapter are not limited to that purpose, and seem to aim at a comprehensive and exclusive method of appropriating. But it would seem necessarily, upon general principles of law, that between two parties, neither of whom has a permit, prior possession must prevail at least until one or the other is approved by the state engineer."
Before concluding this opinion I feel impelled to say that this statute has been in force for a period of 22 years. Hundreds of thousands of dollars of the public money have been expended in maintaining suitable offices and paraphernalia for carrying out the purposes of the act, to say nothing about the amounts paid in salaries to the state engineer and his deputies, assistants, and clerks. It cannot be denied that a system whereby a complete record is required of rights and titles to the use of water is infinitely superior to a system, if it can be called a system, in which the evidence of title rests entirely in parol and depends solely upon the memory of man. It may be contended that this goes to the policy of the act which belongs exclusively to the Legislature, and is therefore outside the domain of judicial interpretation. We contend, however, that if the policy of the act is manifestly wise and superior to previous systems from the standpoint of policy, it is one of the most cogent reasons why we should hold that the Legislature must have intended exactly what it said and has repeated and reiterated time after time for almost a quarter of a century.
And finally, it may be said there are many reasons to believe that the construction of the statute for which we contend has been accepted by practically all the people of Utah ever since its first enactment in 1903. There has been no clamor to the contrary among the masses of the people, for if there had been their senators and representatives in the Legislature would long ago have demanded a change in the wording of the statute, and the change would have been made. The statute, as far as the question here is concerned, has been in force for 22 years, and this is the first time the question has come before the court. There never will be a *Page 48 more favorable opportunity for settling the question than now, for the reason that, independent of the statutory question presented, the right of the defendant to any of the waters in dispute, even under the old method of appropriation, is extremely doubtful. As far as the rights of others not parties to this action are concerned, I have no reasons to believe there are any claiming rights under the old method of appropriation except those whose rights were initiated prior to the act of 1903.
In addition to the foregoing, I also concur in the order remanding the cause for the reason stated in the opinion of Mr. Chief Justice GIDEON.