Had the following been omitted from the prevailing opinion it is possible I could have fully concurred:
"In this jurisdiction the American or reasonable use rule, or as otherwise expressed, the correlative right doctrine, has been adopted and applied to underground waters. Horne v. Utah OilRefining Co., 59 Utah 279, 202 P. 815, 31 A.L.R. 883; Glover v. Utah Oil Refining Co., 62 Utah 174, 218 P. 955, 31 A.L.R. 900. This doctrine as declared in the above cases recognizes the correlative rights of adjacent landowners to underground artesian waters percolating in and through their respective tracts of land, and each is entitled to put his correlative share of such waters intercepted on his own land to a reasonable use in connection with the enjoyment of the land itself and, under *Page 329 certain circumstances, each may transport his correlative share for use elsewhere. There is no decision by this court wherein the rule of reasonable use has been definitely applied to a landowner intercepting on his own land percolating waters which afford a source of supply to a stream or spring previously appropriated by others. The decision which more nearly touches this question isRasmussen v. Moroni Irr. Co., 56 Utah 140, 189 P. 572, wherein the court, while expressly limiting the decision to the facts therein stated, and denominated a `River System Case,' recognized the right of the landowner to use the percolating waters on the land where found. An application of such rule has been made by the federal courts in a case arising in this state on facts similar to those in this case. In Midway Irr. Co. v.Snake Creek M. T. Co., supra, the United States Circuit Court, in reversing a decision of the United States District Court, which quieted title in the mining company to waters collected by its tunnel, enjoined the mining company from asserting any claim to the surplus waters flowing from the portal of its tunnel `not wanted for operating its nimes' and with that qualification quieted title in the prior appropriators. The court in announcing the rule said: `The American, as distinguished from the English rule, is that, while the owner of the land is entitled to appropriate subterranean or other waters accumulating on his land, which thereby become a part of the realty, he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns, unconnected with the beneficial use of the land, especially if the exercise of such use in excess of the reasonable and beneficial use is injurious to others, who have substantial rights to the water.'
"This decision was affirmed by the Supreme Court of the United States in Snake Creek M. T. Co. v. Midway Irr. Co., supra.
"In thus applying the reasonable use rule the court undoubtedly had in mind such use of the water by the tunnel company in connection with its mining operations as would not materially depreciate the quantity or deteriorate the quality of the water to which others had prior rights by appropriation.
"No specific issue has been made in this case with respect to any particular use which plaintiff may make of such water. The plaintiff has not shown either by pleading or proof that it has used or intends to use this water in any particular manner in connection with its mining operations. It claimed all the water as its own with which it could do as it pleased. The controversy here is not between adjacent landowners each claiming a correlative right to the use of underground waters, but is between prior appropriators on the one hand and a mining company on the other which is claimed to have interfered, by the driving of its tunnel, with the source of supply of springs *Page 330 and streams long ago appropriated and put to a beneficial use. Under these circumstances the rule of law applicable is not that pertaining to correlative rights, but the law of appropriation. Each of these rules occupies a different field, and, where one is applicable to a given set of facts, the other is excluded thereby. Under the doctrine of appropriation there is no allowance for a landowner by means of tunnels or other artificial works to intercept a source of supply to streams or springs used by prior appropriators and to make such use of the water intercepted on the land where found or otherwise so as to diminish the quantity or deteriorate the quality of the water to the detriment of such prior appropriator. Peterson v. Wood,71 Utah 77, 262 P. 828.
"There is here no definite finding that defendants and their predecessors in interest had made their appropriations at a time when plaintiff's lands were still public domain, but enough appears in the evidence and the findings as to when plaintiff obtained patents to its land and the length of time defendants and their predecessors had used the water of the springs and streams, under their appropriations, to lead to the conclusion that defendants made their appropriations of the water before plaintiff's lands were segregated from the public domain."
Part of the above quotation, in so far as its being a correct statement of the law in this jurisdiction is concerned, I readily concede; but its applicability to the instant case does not appear.
It is said:
"In this jurisdiction the American or reasonable use rule, or as otherwise expressed, the correlative right doctrine, has been adopted and applied to underground waters."
If such statement is intended to carry the implication that such doctrine has been "adopted" or may be "applied" to underground waters generally or that it has been "applied" otherwise than in the case of Horne v. Utah Oil RefiningCompany, 59 Utah 279, 202 P. 815, 824, 31 A.L.R. 883, and the case of Glover v. Utah Oil Refining Co., 62 Utah 174,218 P. 955, 31 A.L.R. 900, it has not been my good fortune to discover such cases. Certainly the doctrine of correlative rights is not applicable to the instant case. Under the Utah statute (whatever the doctrine of correlative *Page 331 rights may mean) the doctrine of reasonable use must be a limitation thereon. Mr. Justice Thurman recognized the inherent difficulties incident to an attempted harmonizing of the cases when in the case of Horne v. Utah Oil Refining Co., supra, he said:
"The writer feels impressed to say he has no substantial doubt as to the justice and equity of the doctrine of reasonable use of percolating waters as between adjoining owners; but as to what constitutes a reasonable use the authorities are not as clear as might be desired. They seem to dwell mostly upon the point that it is not a reasonable use to convey the water away from the land in which it is found. It seems to me that the use of the water by an adjoining owner, to be a reasonable use, especially in an artesian district, should be limited first to his just proportion according to his surface area, and, second, he should not be entitled even to this quantity to the injury of others similarly situated, unless it is reasonably necessary for the beneficial purposes to which he devotes the water."
Water once appropriated under the Utah statutes, the right to the use thereof becomes vested. The right, leaving to one side for the moment the quantity, is fixed by the priority of appropriation, which appropriation is then limited by the purpose or use to which it is applied, and is further limited by the statutory declaration that "the appropriation must be for some useful and beneficial purpose, and, as between appropriators, the one first in time shall be first in right." R.S. Utah 1933, 100-3-1. The quantity or measure to be applied to the appropriation is, first, the quantity as measured by the original appropriation, and, second, as further limited, if the original appropriation was more than could be beneficially used, by the factual measure of beneficial use. The facts that determine the application of the legal limitation of beneficial use are matters of evidence, to be applied to the statutory declaration that, "beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state." R.S. 1933, 100-1-3.
Part of the excerpt above quoted from the prevailing opinion is: *Page 332
"Under these circumstances the rule of law applicable is not that pertaining to correlative rights but the law of appropriation."
The opinion further says:
"Under the doctrine of appropriation there is no allowance for a landowner by means of tunnels or other artificial works to intercept a source of supply to streams or springs used by prior appropriators and to make such use of the water intercepted on the land where found or otherwise so as to diminish the quantity or deteriorate the quality of the water to the detriment of such prior appropriator. Peterson v. Wood, 71 Utah 77,262 P. 828."
As thus stated, the discussion makes a water-tight case for the doctrine of priority of appropriation and beneficial use. It is then said:
"There is here no definite finding that defendants and their predecessors in interest had made their appropriations at a time when plaintiff's lands were still public domain, but enough appears in the evidence and the findings as to when plaintiff obtained patents to its land and the length of time defendants and their predecessors had used the water of the springs and streams, under their appropriations, to lead to the conclusion that defendants made their appropriations of the water before plaintiff's lands were segregated from the public domain."
It is the direct implication in the above quotation that, had the plaintiff's lands been segregated from the public domain, no matter how long defendants had enjoyed the use of an appropriation of water, the owner of the land may at any time intercept the source of or cut off a prior appropriation. No one familiar with the development of the use of water in this arid part of the country can be unfamiliar with the constantly progressive movement towards the sources of supply. Both quantity and quality factors demand the protection of sources.
I am fully aware of the numerous cases where such implication as contained in the above excerpt have been made, and certain other cases where the doctrine may have been applied to particularly stated facts and circumstances. *Page 333
As was so aptly stated by Mr. Justice Thurman in the case ofStookey v. Green, 53 Utah 311, 178 P. 586, 589, "the importance of every decision by this court relating to the subject of irrigation and water rights, especially when we realize that even fugitive suggestions outside the issues of the case as well as expressions applicable to the facts may be erroneously referred to and relied" upon in subsequent cases, compels me to say that, while I am in general in harmony with the result reached, I cannot subscribe to the implications, neither do I feel to commit myself to the extent to which some of the statements in the prevailing opinion would bind one by an unqualified concurrence.