I concur with that part of the prevailing opinion which holds the cause should be remanded for further proceedings. I dissent, however, from that portion which holds that all of the developed waters are not subject to appropriation.
The author of the prevailing opinion in his attempt to save what is considered vested water rights announces some concepts of water law with which I may subsequently disagree, but which I do not answer now because they are not involved in this litigation. We are here dealing with underground waters, and I have grave doubts that an artificial diversion is an absolute requisite to a right to use. However, this question is not before us as there has never been any attempt on the part of the plaintiff to use the water for a beneficial purpose. Accordingly, I reserve for future consideration any discussion as to what right an owner of land might acquire in underground waters if they had been beneficially used without artificial diversion. Our holding in the case of Adams v. Portage Irr., Reservoir Power Co.,95 Utah 1, 72 P.2d 648, suggests an answer to this question. *Page 238
Another principle announced in the prevailing opinion which suggests a ruling contrary to our previously decided cases, and contrary to my understanding of hydrology, is that water is percolating water and part of the soil when close to the surface, but apparently loses this characteristic if it is found at depth. I had never supposed that proximity of water to the surface of the land altered the rights of the owner of the land, or resulted in changing waters from being appropriable to being unappropriable.
Prior to 1935 the Legislature had restricted the appropriation of public waters to those waters flowing in known or defined channels. Chapter 67, Section 1, Laws of Utah 1919, provided as follows:
"The water of all streams and other sources in this State, whether flowing above or under the ground, in known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof."
This section was not amended until 1935. During that year, the Legislature passed the act which is now Section 100-1-1, U.C.A. 1943. This section is as follows:
"All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof."
An inspection of the two acts will disclose a definite legislative intent, as of 1935, to make all waters in this state available for appropriation regardless of whether they be classified as surface, underground, diffused, percolating, artesian, or otherwise. Under the provisions of this section, defendant Westwood would be entitled to appropriate the water here involved unless prior to 1935 plaintiff had acquired a right to the use thereof which could not be impaired by legislative change.
Under the stipulation of facts, there are two questions which I believe are involved in this litigation. The first touches on the classification of the water and the second *Page 239 is whether or not plaintiff has beneficially used the water so as to be protected in her use.
As to the first question, I believe we should not longer try to make fine distinctions between classes of underground water. All water beneath the surface of the ground is, purely and simply, ground water moving according to certain well recognized laws of physics. In this particular case, very little, if any, of the water originates on plaintiff's land. Most of it must come from other places. It moves underground onto plaintiff's land and runs underground to other locations. The flow of the stream developed by the defendant indicates underground movement and flow. The water here involved is not stagnant and motionless, it is vagrant and meandering and to distinguish it from other underground waters is inconsistent with present day principles of ground water hydrology.
In addition to the foregoing reason, it is my opinion that under our present statute the classification of the water is immaterial for purposes of appropriation. However, it may be, as set forth by Mr. Justice Wade, of importance in determining the rights of plaintiff prior to the 1935 enactment. Generally speaking our previous cases have held that percolating or diffused waters are owned by the person who holds title to the land. If, therefore, this water could be classified as either percolating or diffused water, it could be reasonably argued that because of prior holdings of this court the plaintiff owned the water because it was part of the realty and passed with title to the land. I need not, in this action, decide whether this argument is sound, and, if so, whether the Legislature could, by a subsequent enactment, impair such a right. This for the reason that under the stipulated facts, these waters appear on the surface in a spring area and are concentrated rather than diffused. We have previously held that spring waters are subject to appropriation and while the surface flow in this area may have been small, it is sufficient to be treated by the parties as a spring. *Page 240
My principal reason for dissenting, however, goes to the second proposition — namely, that plaintiffs have never beneficially used this water and that unless a beneficial use was established before 1935, the water became public property and subject to appropriation. While there has apparently been conflicting decisions in this state on the ownership of underground waters, I know of no decision which has held that either ownership or right to use could be established without the water having been put to beneficial use. Under the stipulated facts, the use in this case consists of using enough of the water to sustain the growth in the spring area of a few brushes, one or two patches of native grass, and one or two scrubby Cottonwood trees. Apparently the seepage from the course of the water was sufficient for this purpose as no efforts had been expended to contain the water in its natural channel or divert it from its normal path. Such use to me does not constitute a beneficial use. While the term "beneficial use" does not readily lend itself to a definition, I believe it can be said in this case that when underground water naturally sustains a small growth surrounding a spring, is not a use which can be termed beneficial, within the meaning of our statutes or our decisions. Had plaintiff ever attempted to use the water to improve the fertility of the soil, to grow grass or vegetation for meadow purposes, to use it for subterranean irrigation for products of the soil, or to use it for any other well recognized purpose, then I would believe plaintiff had acquired some rights. However, the record indicates that the water has been wasted, for the full period of time that the land has been owned by plaintiff. Underground water should be either beneficially used by the owner of the land or be available for appropriation by someone who will obtain some benefit from its presence in the area. To permit water to be wasted when it can be beneficially used is not in keeping with my concept of developing one of the most important natural resources of the state.
I concur in the holding that under the facts and circumstances of this case, the application to appropriate should *Page 241 not have been denied because the development turned out to have been performed on plaintiff's land. This is not an action to enjoin defendant from trespassing on plaintiff's land, to restrain a continuing future trespass, or to recover compensation for damages already sustained. The action was instituted to reverse the State Engineer's order approving an application to appropriate. Even though a technical trespass was committed, the State Engineer was not precluded from making a determination that there were unappropriated waters at the source. This determination is not controlled by the manner in which the information is secured. Whether the defendant can proceed and further develop the water without the consent of plaintiff or without some other legal proceeding was not before the State Engineer and is not now before us. However, in view of the fact that the principle has been discussed, I merely suggest that in my opinion Section 100-3-19, U.C.A. 1943, is not the section which controls the rights of the defendant, Westwood. He is not seeking to make a survey to secure required information for the purpose of making a water filing, what he seeks is to develop water on plaintiff's land. If he can acquire a right to do this then it must be because of the provisions of Section 100-1-6, U.C.A. 1943, which permits condemnation of land for purposes of securing water if an adequate consideration is given therefor. *Page 242