I feel constrained to concur in the reasoning and conclusions of Mr. Justice STRAUP.
Chapter 67, Laws Utah 1919, is but a reenactment of the appropriation act adopted in 1903. Laws Utah 1903, c. 100. True, since then numerous amendments and changes have been made in the administrative provisions of the act. The purpose of the act as originally adopted has, however, been maintained throughout all of its changes. For example, the declaration that the water "of all streams and other sources when it filed its application in the state engineer's office in in this state, whether flowing above or under ground, in homestead, were subject to appropriation by the plaintiff known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof" has, as we shall see, been continued in force in all of the re-enactments. See Laws Utah 1903, c. 100, where the declaration was first made. When chapter 100 was re-enacted in somewhat changed form in 1905, the declaration *Page 75 was contained in section 47 of that act. Laws Utah 1905, c. 108. The same provision now constitutes section 1, chapter 67, Laws Utah 1919, which is the latest re-enactment of the original act adopted in 1903. In the original act, as well as in all the subsequent re-enactments, it is also provided:
"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."
That provision is found in section 34 of chapter 100 aforesaid, and is also found in the same numbered section of chapter 108, Laws Utah 1905, and is now a part of section 41 of chapter 67, Laws Utah 1919, the latest re-enactment of the original act. In addition to the provision, which is found in the original act as well as in all of the re-enactments, that the right of the public to the water of this state is "subject to all existing rights to the use thereof," is also found this provision (Laws 1919, c. 67, § 48):
"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, or where the approval of such application would in the opinion of the State Engineer interfere with the more beneficial use for irrigation, domestic or culinary purposes, stock watering, power or mining development, manufacturing, or would prove detrimental to the public welfare, it shall be the duty of the State Engineer to reject such application." (Italics mine.) Laws 1919.
The question therefore is, What is meant by "unappropriated water" and "existing rights?" In my judgment their meaning is neither ambiguous nor obscure. In view that the state cannot grant or permit the use of water except for some known and recognized beneficial use, it, by the same token, cannot take it from one who is applying it to a known and recognized beneficial use or purpose and give it to another. If, therefore, A makes application to the state engineer for permission to appropriate water he must make evident at least two facts: (1) That the water he seeks to appropriate is unappropriated; and (2) that he is not invading existing rights. If the water he seeks to appropriate is already being applied to a known and recognized beneficial use, or if, in the language of the statute, there are existing rights to the *Page 76 water, then the state engineer cannot legally grant the application. True it is that the water may not come within the class of unappropriated water for two reasons: (1) Because there may be pending a prior application made pursuant to the provisions of the act; and (2) it may be actually applied to some known and recognized beneficial use. If a prior application under the act exists it is immaterial whether the water is then actually being applied to a beneficial use or not. The statute was enacted to authorize an applicant to acquire prospective rights to the use of water, and for the purpose of giving him ample time to perfect his proposed project or system whether it be intended for irrigation, for power, or for domestic purposes. An applicant may thus obtain an inchoate right to a large amount of water without applying it to a present beneficial use, and he has a right to apply the same from time to time to a beneficial use in small quantities until he has finally perfected his plant, system, or project, at which time he can apply all the water applied for to such beneficial use. His right to the water thus, by relation, dates back to the date of his application, and he is constantly protected to the same extent as though he had actually applied all of the water to a beneficial use from the date he first made his application. By complying with the statute, therefore, the applicant may obtain rights to a specific quantity of unappropriated water for future use without actually applying it to a present beneficial use.
In my judgment one may, however, also acquire rights to unappropriated water by diverting it from the stream or source by actually applying it to a beneficial use. In the latter case, however, the claimant can only acquire a right to such a quantity of water as he actually and visibly applies to a beneficial use, and his right becomes vested only from the time that the water is actually applied to a beneficial use. To hold otherwise is to disregard some of the provisions of the act as it now reads, and as it always has read. It would also lead to injustice, and, in some instances, to actual confiscation of property rights. One may easily imagine a case where a user may settle on lands at or near the mouth of one of *Page 77 our numerous mountain canyons or streams, and there tap a small stream issuing from the canyon, or springs, with pipes and other devices, and make more or less extensive improvements by means of which he applies the water to culinary, domestic, and stock-raising purposes without having made an application under the act. In view that under such circumstances the user does not intend to protect any inchoate rights and immediately, openly and visibly applies all of the water to a beneficial use, it is not easy to understand why an application pursuant to the provisions of the act would be of any practical use except to make a record of the application and thus to obtain some official evidence of his rights. In view, however, that it is a sound legal proposition that in acquiring rights to property one is always charged with notice of what is open and visible to all, an applicant under the act must take notice that the water is being applied to a beneficial use, and hence is not then subject to appropriation under the act. If that be not so, then A, although he sees the water actually applied to a beneficial use, may, nevertheless, by complying with the act, obtain from the state engineer a certificate authorizing him to take water that is actually being applied to a beneficial use and therefore a lawful use. That such is the unavoidable result under the construction placed upon the act by the majority of the court, it seems to me, is beyond question. The state engineer would, in such a case, be powerless to protect the original user merely because the latter had failed to comply with the act although he is actually applying the water to the only use for which the state can control it.
Can it reasonably be contended that one who is actually, openly, and visibly applying water to a beneficial use has not acquired an "existing right" thereto which is protected by the act? Notwithstanding that, however, if no rights can be acquired except by complying with the act, then neither the state engineer nor the courts can prevent the confiscation of the first user's property rights by taking the water from him. *Page 78
Nor, in my judgment, is the construction of the act contended for by the majority absolutely necessary. While it is quite true that if an applicant desires to acquire a prospective right to the use of water he can only acquire such right in one way, namely, by complying with the provisions of the act, he, as I view it, may nevertheless acquire a present (not a prospective) right to so much water as he actually, openly, and visibly applies to a beneficial use as against the whole world. There certainly can be no question that even after complying with the terms of the act the applicant's ultimate rights are limited to the quantity of water he actually applies to a beneficial use. It is therefore the actual use that gives the indefeasible right to the use of water and not the statutory application therefor. The right that is acquired by actual use is, in my judgment, just as sacredly protected by our statute as is the right acquired by making an application to the state engineer. The only difference between the two is that by pursuing the statute the applicant obtains an inchoate right to a specific quantity of water which he may apply to a beneficial purpose in the future; while under the other method no right can be acquired except to so much water as is actually, openly, and visibly applied to a present beneficial use.
Then again the question arises, What is meant by "existing rights?" Does it indicate only such rights as are acquired by complying with the act? If it be held that such is the case, something must be read into the statute which is not there. To so hold we must construe the statute as though it read "existing rights acquired under or by virtue of this act." The statute, however, is not thus restricted. It refers to existing rights generally, which means all rights that exist when the application to the state engineer is made. Moreover, if existing rights are assumed to be limited to rights existing at the time the act was originally adopted, then the provision is practically without effect. It certainly is without legal significance, since the Legislature was powerless to interfere with vested, that is, existing rights. The Legislature could, however, provide for and protect rights that may have *Page 79 accrued after the passage of the act, and before application under the act could be made, and which would exist at the time the application under the act was actually made. That, in my opinion, is precisely what was intended and what is the true purpose of the act.
Again, water that is being applied to an actual, open, and visible beneficial use is no longer unappropriated water, and hence is not subject to appropriation. To hold otherwise is to hold that water may actually be applied to a beneficial use, the only use authorized by law, and yet belong to the unappropriated water of the state. That would be in the very teeth of the truth. It may be true that it was not appropriated in a particular way, but it is not true that in fact water which is acually applied to a beneficial use is unappropriated water under the law in force in this arid region. The language of the statute, however, settles that. It is there provided that if an application interferes "with the more beneficial use for irrigation, domestic or culinary purposes, stock-watering," etc., the application cannot prevail. Under the construction placed upon the statute by the majority, however, that provision can apply only in case the right to the uses which I have quoted is acquired pursuant to the statute "and not otherwise." These provisions, under the rule adopted by the majority, are therefore meaningless, for the reason that if the right to the uses specified was actually acquired pursuant to the statute it was needless to say anything about such a right, since it was indefeasible under the statute. If, however, the right was acquired by virtue of actual use without formal application, what is said in the statute is given full force and effect.
Much stress is, however, laid upon the fact that by making application through the state engineer a complete record is made by means of which legal certainty is established and controversies avoided. The fact is, however, that no certainty is or can be established by the record made in the engineer's office except that a particular applicant has made application for a specific quantity of water to be used at a particular place and for a specific purpose. The quantity of water that *Page 80 will ultimately be applied to a beneficial use by the applicant, and of the use to which he obtains an indefeasible right under the statute, can only be determined by actual measurement of the quantity of water that he is actually applying to a beneficial use. The engineer's record and certificate may therefore show that the applicant is entitled to a much larger quantity of water than he is actually applying to a beneficial use, and may thus be entirely misleading. The test, and the only test, of the right to use water, as I have pointed out, is the quantity that is actually being applied to a beneficial use. That fact cannot be ascertained from the record in the engineer's office, nor from any record except from one that is the result of actual measurement. There is therefore no greater difficulty in ascertaining the truth in the one instance than in the other, and hence the argument concerning the sacredness of the record in the state engineer's office falls. That record is, however, important in protecting the rights of the applicant pending the time that he is perfecting his works or plant. To protect him in that regard and to make the time at which his rights attach, together with the quantity of water applied for and the place where it is to be used certain and uncontrovertible, is no doubt the principal purpose and utility of the statute. It was not intended to, nor should it be permitted to control the actual, open, and visible use of water that is being applied to a beneficial use.
In this connection it is also important to keep in mind that the act provides as follows:
"Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state."
That "beneficial use" is the basis as well as the limit of all rights to use water is precisely what I contend for. Under the construction of the majority, however, it is not beneficial use that is the basis, but it is the application to the state engineer that constitutes the basis and beneficial use is merely the limit of the right. The majority base their whole contention upon the phrase "and not otherwise" to which I have hereinbefore referred. All, I think, will agree that it is a cardinal canon of construction that all words and phrases *Page 81 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. The majority of the court, as it seems to me, place undue importance upon the single phrase "and not otherwise." As I view it, that phrase can be given effect without destroying or silencing other important provisions of the act. When it is kept in mind that the principal purpose of the act is to provide safe, practical, and adequate means by which the water of this state may be appropriated before being actually, openly, and visibly applied to a beneficial use, and to protect the applicants in their efforts to apply the water to a future contemplated beneficial use, it is not difficult to understand the meaning of the phrase "and not otherwise." It merely means that the applicant can protect his inchoate right to a specific quantity of water in advance of actually, openly, and visibly applying it to a beneficial use by complying with the provisions of the act. In other words, the method provided in the act is the only method by which a right to the use of water without actually applying it to a present or immediate beneficial use can be initiated and adequately protected until such a time as the applicant shall be prepared to actually apply it to a beneficial use. Such a construction not only gives the phrase proper force and effect, but it also permits all other provisions of the act to which I have referred, and to many others to which I have not referred, to have full force and effect. The construction of the act I contend for leads to this: That every word and every phrase is given its appropriate effect; that the basis of the right to the use of the water of this state, just as the language of the act declares, is beneficial use; that every one who is actually, openly, and visibly applying water to a beneficial use is protected in his rights as against all other claimants who have no prior rights; that the means or method for ascertaining and determining the rights to the use of water of all persons who *Page 82 openly and visibly are applying the same to a beneficial use is precisely the same whether they claim under the act or by virtue of actual beneficial use, namely, the measurement of the quantity of water that is actually, openly, and visibly applied to a beneficial use; and finally that each and every provision of the act is given proper force and effect. I most respectfully submit that such a result is not possible under the construction that the majority place on the act as I understand it.
I was a member of the court when the case of Sowards v.Meagher, 37 Utah, 212, 108 P. 1112, referred to in the dissenting opinion by Mr. Justice STRAUP, was decided. As I understand that case, and as I read Mr. Justice STRAUP'S dissenting opinion, that case and his opinion go to the extent that I have herein indicated, and no further. When the opinion in the Sowards Case was written I was of the opinion that the law was there properly reflected and applied, and by subsequent investigation and reflection the opinion I then formed has very materially been strengthened. I am of the opinion, therefore, that this case should be ruled as indicated in Mr. Justice STRAUP'S dissenting opinion.