I concur with the opinion of Mr. Justice Latimer. I shall add one further observation. In legal concept all waters of *Page 235 this state, surface or underground, whether flowing in known or defined channels, whether in underground or surface basins, or whether percolating through public or private lands, not yet appropriated regardless of the existing procedure for appropriation are, and have always been, public waters. When the settlers first came to this state they took the land and the necessary water to make it fruitful. The waters were free for everyone to enjoy beneficially. And in that status the waters of this state remain today except where they have been appropriated. As the state grew and was developed, the legislature at various times concerned itself with different categories of public waters by extending to them certain statutory requirements in order to appropriate said waters rather than to leave them to appropriation by diligence in placing them to beneficial use. The first of these times was in 1903 when the legislature gave the state engineer administrative jurisdiction over all the waters of all streams and other sources in the state flowing above or under the ground in known and defined channels. Chapter 100, Laws of Utah 1903. Later in 1935 the legislature desiring to bring the balance of the public waters of this state under the control of the state engineer, enacted Sec. 100-1-1, U.C.A. 1943, which declared that all waters in this state, whether above or under the ground, are the property of the public, "subject to all existing rights to the use thereof." The legislature did not by a declaration, make public what were previously non-public waters. It simply extended to all public waters the necessity of application to the state engineer in order to appropriate, and made such appropriation subject to all existing rights. The above view, which I think is the correct one, avoids any question of the constitutional right of the legislature to "declare" private waters to be public. They were always public until appropriated by diligence or by application, when the latter was made the necessary method of appropriation.
I am not unmindful of the several opinions of this court which have stated that percolating waters located on private *Page 236 lands were private waters and not subject to appropriation; that they were an integral part of the soil. See the cases cited by Mr. Justice Wade. Most of those statements were dicta. But in two cases there was a square holding, Willow Creek Irr. Co. v.Michaelson, supra, and Deseret Live Stock Co. v. Hoopiania, supra. Even as to those two cases in one of them the percolating waters on private lands had been put to a beneficial use and hence a diligence right had been obtained. They were public waters in regard to which the statute had not given the state engineer administrative jurisdiction and had not required an application to appropriate, and hence those private owners through whose land the waters percolated could obtain diligence rights in such water without application the same as diligence rights could be obtained in surface waters before the enactment of Chapter 100, Laws of Utah 1903. In every instance, with one exception, as far as can be determined, the land owner had put the percolating water to a beneficial use, and by that method obtained a diligence right.
The one case in which this court held that percolating waters on private lands belonged to the owner of the land, where the owner had not put the same to beneficial use before claimed by another was Willow Creek Irr. Co. v. Michaelson, supra, decided in 1900. There the defendant had suffered water from a bog on his property to run off into the creek of the plaintiff irrigation company and to be used by the plaintiff for a period of three years before the defendant ever attempted to make any use of the water. The court defined percolating water as
"water * * * percolating through the soil, or flowing in a subterranean stream, having no defined or known channels, courses, or banks." [21 Utah 248, 60 P. 944.]
Since that time this court's concept of what is percolating water has been narrowed. Mr. Chief Justice Straup in Wrathall v. Johnson, supra, used the term to mean
"diffused waters in lands privately owned, percolating or seeping through the ground, moving by gravity in any or every direction *Page 237 along a line of least resistance, not forming any part of a stream or other body of water either surface or subterranean, and, as far as known, not contributing or tributary to a flow of any defined stream or body of water." [86 Utah 50, 40 P.2d 790.]
Guided by the latter definition, the waters flowing from the bog in the Willow Creek case were not percolating waters since they did contribute to the flow of the Willow Creek.
I agree with Mr. Justice Latimer that there is no evidence that the waters on Jessie Riordan's land were in any way appropriated by her putting the same to a beneficial use; hence she had no diligence right to the waters in question which was preserved by the clause, "subject to all existing rights to the use thereof."