Only one question is presented by this application for a writ of prohibition; that is, whether the district court of Millard county has jurisdiction to entertain and act upon an application for a temporary change in the point of diversion *Page 161 and place of use of water of Sevier river, filed in a suit involving the general adjudication of the water rights of the Sevier river system. It is contended by plaintiffs that under no circumstances can any change in point of diversion or place of use, either permanent or temporary, be made without the water user desiring such change filing an application with the state engineer pursuant to the provisions of section 100-3-3. Defendants contend that that section has application only where the water user desires to abandon the right to divert his water at the point or to use it at the place to which he is entitled and to acquire a right, in the nature of a new right, to divert the water at a different point or to use the water at a new or different place, and that when the court has before it the matter of the general adjudication of water rights in any river or water system it may temporarily control the use of such waters pending final adjudication. All the parties to this litigation concede that the provisions of section 100-3-3 are applicable where such permanent change in either respect is desired. Here the petitioning water users do not desire any permanent change in the point of diversion or in the place or nature of use of the water to which they are entitled. Because of an emergency occasioned by drouth, permission was sought to use the water on lands other than those on which they had been used and, to make that use possible, to change the point of diversion. This change was requested for the season only. The problem, stated in another way, is, where the district court has jurisdiction of the subject-matter of the waters of the Sevier river system and of the parties claiming the right to use such waters, does such court have jurisdiction, prior to final decree, to order temporary changes in the place of use and point of diversion where no permanent change with respect to either is requested?
Section 100-3-3, R.S. 1933, provides that:
"Any person entitled to the use of water may change the place of diversion or use, and may use the water for other purposes than those *Page 162 for which it was originally appropriated, but no such change shall be made, if it impairs any vested right, without just compensation; no change of point of diversion, place or purpose of use shall be made except on the approval of an application of the owner by the state engineer. * * * Any person holding an approved application for the appropriation of water may in like manner change the point of diversion, place or purpose of use."
I see no reason for holding that the statute refers to any other than a permanent change in the place or manner of use or point of diversion already established by decree or approved application for appropriation, and to acquire a new right to take his water at another point or to use it at a different place or in a different manner. Where there is pending in court a proceeding to adjudicate water rights of any system, the matter of point of diversion, manner and place of use, the amount of water to which each claimant is entitled, and the various priorities are before the court for adjudication. The jurisdiction of the court is such that pending final decree and while such matters are in the course of litigation it may entertain petitions and make orders of an interlocutory nature, making temporary or seasonal disposition of the waters and prescribe the terms and conditions on which such use may be had. That is the exercise of a power incidental to the jurisdiction which the court has over the waters of the river and the parties interested by reason of the pendency of the general adjudication action.
Where the owner of a water right desires to permanently change the point of diversion or the place or character of use, he should follow the statute and make a filing with the state engineer. After disposal of such application by the state engineer, either by approval or rejection thereof, any party aggrieved may take the matter to the district court pursuant to the provisions of section 100-3-14. Undoubtedly in such an action, the district court would have jurisdiction, on proper application and notice, to order how and where the water might be diverted or used pending final adjudication, *Page 163 and the state engineer would distribute the water pursuant to such order.
In this case I do not desire to go farther than necessary to decide the issue before us, and that involves merely the jurisdiction of the district court to direct the temporary use or place of diversion of waters in the action pending before it. Believing that the court has jurisdiction in this respect, I concur in the order indicated in the opinion of Mr. Justice MOFFAT denying the petition for a writ of prohibition and withdrawing the alternative writ heretofore issued.