I dissent. I shall consider first the holding of the prevailing opinion that a court having jurisdiction of an action for the determination of water rights has original jurisdiction of an application for a permanent change of point of diversion, purpose, or place of use, and, second, that such court has also original jurisdiction to entertain an action for a temporary change. Much which I shall say in regard to the first holding will apply to the second holding, but there are some differences between an application for a permanent change in the point of diversion and one for a temporary change.
As to the holding of the opinion that the district court having jurisdiction of an action for the determination of water rights has original jurisdiction of an application for a change permanently in the point of diversion, the fundamental error lies in the fact that the opinion fails to see that an action for the determination of water rights as provided by section 100-4-1, R.S. Utah 1933, is one to determine existing rights and not one to grant new rights. Note the language of section 100-4-1:
"Upon a verified petition to the state engineer, signed by five or more or a majority of water users upon any stream or water source, requesting the investigation of the relativerights of the various claimants to the waters of such stream or water source, it shall be the duty of the state engineer, ifupon such investigation he finds *Page 164 the facts and conditions are such as to justify a determinationof said rights, to file in the district court an action to determine the various rights." (Italics supplied.)
In passing it should be realized that under this section the application for an adjudication is not made originally to the court, but to the engineer, and he can exercise a discretion whether to file the action in the court (subject most likely to an appeal from his decision refusing to file it), and that the engineer and not the water users, under this section, filed the action. I shall endeavor later to call attention to the fact that the jurisdiction of the court over an application for a change in the point of diversion, place, or manner or use is derivative, and that even its jurisdiction of a general adjudication under this procedure is, in a sense, derivative. But what is more of importance is to point out that the adudication to determine water rights is a procedure to determine existing rights and not one to grant new rights. Section 100-4-1 speaks of "requesting the investigation of the relative rights." Of course, a right to take water from a different place on the stream which a water user may thereafter apply for, or later gain, cannot possibly be the subject of a determination of a relative right which the court is asked to determine at the time the engineer files the action. By that I do not mean to say that the court has not power to include in its adjudication and decree rights which may arise after the action is begun and which accrue before the final decree is made, but such rights must be acquired in the manner provided for by statute, and cannot be acquired by virtue of the court's jurisdiction to adjudicate and determine rights. A power to grant a right and a power to determine what right a person has are two different things. Proceeding, we find in section 100-4-3, as amended that, "upon the filing of any action for the determination of water rights the clerk of the district court shall notify the state engineer that such has been filed." The section speaks not of an action to acquire rights but to adjudicate them. If one pursues the various *Page 165 sections dealing with the procedure governing the determination of water rights or relative water rights, it becomes increasingly apparent that the whole scheme contemplated decisions regarding the rights which each water user claimed. It did not contemplate that there should be injected into such adjudications applications for new rights. Might as well contend that an application for an appropriation of water from the stream could be made to the court having general jurisdiction to determinerights on that stream. The effort of the opinion to establish that every water user has a vested right to change his place of diversion subject only to the condition that he injure no other person does not bolster up the reasoning. So have certain persons a right to appropriate unappropriated waters under certain conditions. So have persons a right to acquire a homestead or desert entry. This is but the right to gain a right. Certainly, before such a right is acquired there is the right to move to acquire it, but the matter we are speaking of in these opinions is what officer an applicant must first resort to to perfect such right to divert water at a different place. Reverting again to the court's opinion, it seems evident that it fails to reveal this distinction between the jurisdiction of the district court to determine what each water user's rights are in the stream as to amount of water, priority, manner and time, and place of use, and the jurisdiction of the court to grant a new right, i.e., a new point from which to take the water from the stream. The opinion states:
"Essentially and the only point to be determined is whether or not the statute authorizing the State Engineer to receive, consider, and approve or reject if protested an application for the change of a point of diversion or place or purpose of use of water is exclusive and deprives the district courts of jurisdiction in such matters until the procedure by way of the State Engineer's office has been complied with." (Italics supplied.)
The opinion seems to assume that the district court has jurisdiction, but that it is claimed that the procedure before *Page 166 the state engineer deprives it of that jurisdiction. The fact is that the district court has no original jurisdiction of an application for a change in the point of diversion, and the fact that it is given jurisdiction of the matter of determining relative rights between water users, no more gives it a jurisdiction to entertain an application for a new right than a court adjudicating the partition of real estate would have jurisdiction in that suit to condemn one of the parcels or jurisdiction over an application to connect a house on one of the lots with a street water main. Such application must first be made to the city with an appeal to correct an arbitrary refusal. Because the court would have before it in litigation the subject-matter of the land in the aspect of apportioning it among various claimants (one form of relative rights in the total land) does not mean that all litigation respecting one or both tracts of land, and a fortiori any application for a new right in respect thereto, could be injected into the litigation. Further evidence that this fundamental error has crept into the opinion appears by the following:
"Whether or not the statutory language provides an exclusive method of procedure, conforming to which and not otherwise a change of place of diversion or place or purpose of use may be made, where the proceeding for such is an original proceeding in the district court, and not as an incident to a generaldetermination suit, is not before us and we need not and do not now decide." (Italics supplied.)
It is thus quite apparent that the opinion looks at this application for a new right in respect to water as if it were an "incident to a general determination suit." And again:
"When a right to the use of water has been acquired with all the elements involved therein, may it be said the court in a general adjudication suit has jurisdiction to determine all the elements of the right and impose all the limitations, restrictions, liabilities, and duties except one, — the point ofdiversion?"
The opinion evidently confuses the power of the court to determine as one of the elements of every water right, the *Page 167 point where the user has the right to divert it (which clearly can and must be done) with the power of the court originally to entertain an application for a new point of diversion. One involves the process of adjudicating one of a bundle of existing rights; the other, the question of whether such a tribunal has power to entertain an application to substitute one rod of such fascet for another.
I confess my inability to see the force of the following portion of the opinion as an aid to the views therein expressed:
"In cases where an application is made to the State Engineer to appropriate unappropriated water, and such application is protested and an action is brought for a plenary review, the `parties shall be served with process as in other cases and notice of the pendency of such action shall be filed with the state engineer * * * which shall operate to stay all further proceedings (by the State Engineer) pending the decision of the district court.' R.S. Utah 1933, 100-3-14, 100-4-1 and 100-4-18. Surely the legislature did not intend that a different rule should prevail in a general adjudication suit where the engineer is an active participant."
It appears to me that this only illustrates what I have been talking about, to wit, that the jurisdiction of the court is derivative. Is it meant to imply that because further proceedings by the engineer are stayed pending the decision of the district court, that this means that the district court has original jurisdiction? The statement is self-refutatory.
Nor can I seen what relevancy the fact that the state engineer is required to distribute the waters pursuant to the orders of the court pending the general adjudication and after final decree has on this question of whether the state engineer or the court has original jurisdiction to entertain an application for the acquisition of a new right to take water at a point other than that at which the applicant has the right to take it. The opinion says:
"No exclusive jurisdiction in such matter [referring to the matter, I suppose, of the engineer obeying court orders regarding distribution pendente lite and afterward] seems to be vested during the pendency *Page 168 of such suit in the office of the State Engineer; nor is there a conflict of jurisdiction."
I confess my inability to understand the meaning of this portion of the opinion. Obviously it is impossible for the state engineer to get exclusive or any other kind of jurisdiction over the content of an order of the court which he is required to execute until the court issues the order. The paragraph is meaningless to me.
Nor can I see the materiality of that part of the opinion which quotes constitutional provisions. It appears to hold that since the right to change the point of diversion is a right given by statute, the Constitution confers on the court original jurisdiction in regard to that right. But the right is to be gained in a certain way by application to the state engineer. The opinion seems to hold that there is somehow a right already residing in each water user to change his point of diversion at will, subject to certain conditions. But, as stated before, the right to apply, which every water user has, and the acquired right to make the change, are different things. It may be that the conditions would be such that the applicant could never gain the right. It lends only to confusion to treat the right which a water user may obtain if the conditions can be met, as if it was already a perfected right in every water user. Moreover, if article 8, section 7, of our Constitution is given this construction, I see nothing to prevent each person who by law is required to apply to an administrative or quasi-judicial body for a hearing as to whether the conditions pertain on which he is entitled to prevail, from resorting at once to the courts. An injured employee has a right to compensation, certain conditions appertaining. Since the Constitution confers on the district courts a general jurisdiction, and since this matter of compensation is a civil matter, let the applicant ignore the Industrial Commission and come directly to the district court. Let every shipper come before the courts directly instead of going before the Public *Page 169 Service Commission. Let every applicant for a barber's or physician's or mortician's or dental, etc., license, step around the department of registration and come to the courts.
Moreover, if this argument is sound, the original jurisdiction in the district court to grant this right to change the place of taking water does not depend on the river being before the court for adjudication. It can be done at any time.
Furthermore, the prevailing opinion states:
"The Constitution having thus conferred on district courts a general jurisdiction no limitation may by construction be placed upon that jurisdiction unless the lawmaking power clearly soindicates."
I ask, How could the Legislature indicate any clearer such limitation when it said,
"No change of point of diversion * * * shall be made except on the approval of an application * * * by the State Engineer"?
Should the Legislature have added,
"We mean what these words say"?
Having given my conception of what I consider to be the misconceptions of the prevailing opinion, I shall now consider the matter affirmatively. Partially repeating, section 100-3-3, R.S. 1933, states unequivocally that no change of the point of diversion, place or purpose of use shall be made except uponapproval of an application of the owner by the state engineer. When the language of the statute is so plain and positive, I see no reason why we should read into it an exception, in effect, reading as follows:
"Except in cases where there is pending in the district court the matter of the general adjudication of the river system in regard to a portion of the waters of which it is desired to change the point of diversion, place or purpose of use, in which case the application for the change of point of diversion, place or purpose of use, may be made to the district court having jurisdiction of the said adjudication for the approval of said district court."
Such an exception is entirely unwarranted in the light of the wording of the statute above quoted. Besides, the *Page 170 jurisdiction of the district court is not original, but purely derivative in the matter of initiating or changing water rights. By section 100-2-1 it is provided that the state engineer
"shall have general administrative supervision of the waters of the state, and of the * * * distribution thereof."
Section 100-3-14, states:
"In any case where a decision of the state engineer is involved any person aggrieved by such decision may within sixty days after notice thereof bring an action in any court of competent jurisdiction for a plenary review thereof."
The jurisdiction of the district court in matters such as this is derived from the right of review of a decision of the state engineer and not otherwise. The approval or withholding of approval by the state engineer is an action which must take place before the court can determine whether such action was arbitrary. In some cases, if not all, of a general adjudication of a river system, the matter initiates with the state engineer. Section 100-4-1. It appears that the action of the court operates on the "proposed determination of the state engineer," and all contests are based on his proposed determination. Sections 104-4-11 and 104-4-12. The action of the court, therefore, consists in determining on contests filed, whether the "proposed determination" is or is not correct. It may be doubted whether the court could ignore the proposed determination and go outside of it making a determination independent of the engineer's proposed determination. In short, the initiation of water rights, and any matter involving the appropriation, distribution, and apportionment, including the determination of existing rights and priorities, ordinarily originates in the office of the state engineer. There may be exceptions. The purpose is plain. That is the clearing house and recordation office for water data and status of water rights. Everyone may know that any water rights or changes in points *Page 171 of diversion or place or manner of use or the status of a water right may be obtained in the office of the state engineer. Section 100-4-17 even provides that the clerk of the district court shall send one copy of the certificate issued to each person awarded a water right under a final decree to the state engineer. This is so his record may be complete. To my mind it will seriously interfere with the orderly administration of the water laws and of the state engineer's office to permit rights to be initiated in the district court pending a general adjudication of the river system. Usually such adjudications take a period of years. During all this time any owner of a water right may apply to the district court for a change in point of diversion or place or manner of use. And by the same token for any other right pertaining to such waters. And what provision is there for the state engineer's office to obtain a record of such application or the action of the court thereon?
Reverting again to section 100-3-3, which makes it mandatory to obtain the approval of the state engineer to an application to change the point of diversion, it will be noted that provision is made for the publication of notice of the application for the change. This is the method of serving "persons interested." This notice is given by the engineer on payment of costs by the applicant. Can the court exact the cost and give notice? There is no statutory authority for this. And if the court cannot do so, what sort of notice must it give? Personal notice would not suffice unless made on all the parties to the general adjudication suit who might be very numerous and mostly disinterested. Yet, no one knowing who might be affected by the change in the point of diversion, they would all be required to be given notice. On the other hand, the published notice prescribed to be given by the state engineer is notice to any and all persons interested. Such person must take notice through the publication.
I therefore conclude that in the matter of applying for a right permanently to change the point of diversion it must be initiated with the state engineer. How fares it with the *Page 172 matter of effecting a temporary change? The instant case really involves the question as to whether the district court having jurisdiction of a proceeding for the adjudication of rights in a river system has jurisdiction to order a temporary change in the point of diversion on application by water users directly to such court when such change is not in the course of or for the purpose of adjusting, settling, adjudicating, or compromising in the general adjudication necessary or incidental thereto, or for carrying out any temporary or tentative adjudication or settlement of existing water rights. My consideration of the procedure to gain a permanent right was because of what was said in the prevailing opinion and to lay a basis for the solution of the above question. It is argued that there is a difference between an application for a permanent as distinguished from a temporary change. One involves the giving up of one right and the acquisition of another; the other merely an adjustment to meet conditions. One touches the substitution of one right for another; the other is a matter coming within the administration of the waters of the state. But the deduction is made that since a temporary change is to meet emergencies and does not involve the acquisition of a new right, the court having the general adjudication of the river can make the temporary change upon application to it for the same. Why so? Is it because it has before it the task of adjudicating all existing rights? What is the relationship between this task of adjudication and one of administering the waters of the state? A temporary change of diversion point as desired in the instant case has no relationship to an adjudication of existing rights. There is no question as to where the Cove River Irrigation Company may divert its water. It says: We do not deny that our existing right is to take our water from point A, but we want the right temporarily to take it from point Y. An owner requesting a temporary change in the point of diversion of water is not asking for the adjudication of an existing right for the purpose of compromising or settling a conflict in existing *Page 173 rights or as necessary or incidental to such adjudication or in order to maintain a status quo or tentatively to settle a conflict pending final adjudication. Any power to effect such change unrelated to adjudication, if it exists in any one, is not by way of adjudication but by way of administration of the waters of the state. By section 100-2-1, it is provided that the state engineer
"shall have general administrative supervision of the waters of the state, and of the * * * distribution thereof."
We do not need to determine whether the courts in their plenary jurisdiction had at one time power to effect such a temporary change because the statute seems clear that it is vested at the present time in the state engineer. Nor is his right to administer the waters detracted from by the fact that the river system, some parts of which require administration because of drouth or emergency, is in the hands of the court for adjudication of existing rights in regard thereto. If the court in the process of adjudication or incidental thereto is required to make an order which in effect involves the administration of waters, such order will be paramount, but in this case the temporary change has no relationship to adjudication. It is said that unless the court is permitted summarily to deal with these necessitous situations, without giving the notices set out in section 100-3-3, great harm may ensue; that in every river system seasonal adjustments must be made depending upon the rainfalls and weather conditions, and that they must be made with dispatch. This may be granted. But the state engineer with his corps of experts and the water commissioners under his supervision would seem to be as well situated as the courts to make the investigation, do the consulting and make adjustments for emergency purposes. If any one feels aggrieved at the engineer's action, an appeal lies to the courts under section 100-3-14 and the delay will hardly be greater than that which may be involved where the district court acts upon the application initially with an appeal to this court. In this opinion we do *Page 174 not intend to lay down any rules or make any general pronouncement as to what the state engineer may or may not do as part of his administrative functions. He has two types of powers: One to grant rights in regard to water on application after certain procedure, subject to a review of the courts; the other, a power of supervision and administration. The latter is not only over unappropriated waters of the state but over appropriated waters. The state has a reversionary interest in all appropriated waters. The user has a property right in the use of water as long as he uses it beneficially. But the state, by reason of its residual interest and because of the very importance of water to the economic life of the commonwealth and its fluid and transitory nature which gives rise to problems not encountered in other species of property, undertakes to regulate distribution and adjust and harmonize conflicts and difficulties, all by the way of administration and supervision of the waters of the state. It is not necessarily true that if in this matter of administration and supervision it becomes necessary to make temporary changes in diversion points that the same procedure need be followed as regards notices and hearings as is required for the acquisition of a right to divert permanently from a different point. The engineer may not be arbitrary, nor may he confer a benefit on or relieve one party from a disadvantageous situation to the detriment of others. But most times these adjustments will not entail intrusions on the rights of others or they may be made by agreement. In many cases minor changes will be made by the river commissioners without objection. In the more infrequent cases where the desired change involves an intrusion or claimed intrusion of another's rights, the place in which the objections to the change must center is the office of the state engineer. He then must act in his administrative capacity to adjust the dispute. An appeal lies from his decision, just as it lies from his decision in granting a right to permanently change a point of diversion. A temporary change of diversion does not involve the loss of the right to *Page 175 divert from the old point and purports to be what its meaning implies, a change for a limited time. It would be made because of emergencies or to prevent losses and in the course of administration. At the same time it may be for a period sufficiently long or of a character which would entail injury or loss to others. If so, it could not be made without compensation or agreement any more than the granting of a permanent right.
But jurisdiction of the courts to decide questions of whether there was loss to others and the amount of such loss is derived only from a review of the action or decision of the state engineer. This is true whether the application is for a temporary or permanent change. The district court has no original jurisdiction over such application whether or not it is entertaining jurisdiction of the general adjudication of the river system, unless the application is in the course of arriving at a decision regarding existing rights or incidental or necessary or reasonably related to such adjudication or as part of the modus operandi or means of adjusting or resolving conflicting or doubtful claims. In order for the court to decree a change in the point of diversion its action must have its genesis in contest and must be made as part of the settlement of a contest as to existing rights.
It appears to me that the present application for a temporary change of point of diversion does not come within this category. Therefore, the district court had no original jurisdiction and the alternative writ of prohibition heretofore issued should be made permanent.