I concur. The chief propositions or ultimate facts necessary to the decision may thus briefly be stated: The plaintiff's operation of its mine is conducted or carried on by what is called an open-cut method. In the course of such operation it for years removed, and continues to remove, large quantities of earth rock, and other material carrying a small percentage of copper. Such material was dumped, and is continued to be dumped, on lands of the plaintiff near its mining operations. It is inferable that such material was so dumped, at least originally, as waste, with no thought of treatment to extract therefrom whatever small quantities of copper may be contained there. The plaintiff, of course, owned the dump, and had the right to remove it or treat such material if it found it profitable to do so, or otherwise to use or dispose of it as it desired.
For some years rain and snow fell on the dump, the waters of which seeped and percolated through it and thereby became impregnated with copper in solution in sufficient quantities to precipitate it at a profit. It is admitted that the waters, so long as they remained in the dump, or on the lands of the plaintiff, were and are the property of the plaintiff, and that it had the right to there collect the waters, and by means of pipe lines, flumes, or ditches to convey them to tanks or other structures where the copper in solution could be precipitated, and for such purpose the plaintiff had the right to condemn easements and rights of way over lands of another. It also is admitted, at least it is not disputed *Page 567 that, when the waters so seeping and percolating in and through the dump leave it through natural causes and seep and percolate in and through the soil and earth of adjoining lands of another, such waters, though they carry copper in solution, are lost to the plaintiff, and become a part and parcel of the soil and earth of the lands of such other, and that in such case the plaintiff may not follow or reclaim such waters so found seeping and percolating in the lands of such other. All that I think was involved and decided in the case of Utah Copper Co. v.Montana-Bingham Consol. Min. Co., 69 Utah 423, 255 P. 672.
That such waters, after they so leave the dump, seep and percolate in or through the soil and earth of a gulch of another, or seep and percolate through lands of such other and into or through the soil and earth of a gulch owned and possessed by him, cannot, in my opinion, make any difference. In fact, the contrary is not seriously contended. Hence this action, not to condemn an easement or right of way over the lands of the defendants to lay pipe lines or to construct flumes or ditches to carry the waters from the dump to precipitating tanks, but to condemn the lands themselves in and through which such waters are found seeping and percolating and by such means to enable the plaintiff to become the owner of and to reclaim such waters so lost to it and found seeping and percolating in lands belonging to the defendants. In other words, the primary purpose of the condemnation is not to acquire lands for mining purposes, but to acquire or retain title to or the right to claim and possess waters lost to the plaintiff and seeping and percolating in such lands so sought to be condemned, after such waters by seepage and percolation have left the dump. As well say one may condemn lands of another to acquire title to or the right to use waters percolating therein, or to condemn lands of another to get his ore whether in solution or in a nonliquid state. In either event, the proposition involves the mere taking of property of another, and that too without compensation. *Page 568 The damages here awarded the defendants were only $500, the found value of the lands themselves, without any compensation whatever for the value of any waters seeping and percolating in such lands. No claim is made that the condemned lands are necessary to operate plaintiff's mine or that the lands are to be used in connection therewith. The condemnation of the lands is not sought even for dumping purposes or for treating the ore in the dump. What is claimed by the plaintiff is that the waters from rain and snow falling on the dump and percolating and seeping through it and becoming impregnated with copper in solution cannot without considerable expense be collected at or in the dump and by means of pipe lines, flumes, or ditches carried to the precipitating tanks of the plaintiff, or the waters from natural causes through percolation prevented from leaving the dump and percolating through the adjoining lands of the defendants, hence the condemnation of the lands as a sort of conduit by percolation to carry the waters along or through the gulch to the bottom thereof where the waters on the defendants' lands rise to the surface from whence it may by the plaintiff be diverted and by means of pipe lines or otherwise carried to its precipitating tanks on lands of its own. Thus the plaintiff in effect asserts that such gulch on defendants' lands within the meaning of the Eminent Domain Act (Comp. Laws 1917, § 7330 et seq.) may be regarded as a sort of natural aqueduct, flume, ditch, or canal, and thus subject to condemnation, by seepage and percolation to carry the waters, after they have left the dump, to the bottom of the gulch where they rise to the surface. However broadly the eminent domain statute may be considered, I do not see how the proposition contended for can be brought within the statute. To call the gulch a canal or ditch or aqueduct within the language of the statute is, in my opinion, to give it an unwarranted meaning. About as well within the meaning of the statute may a dry canyon be called a ditch or canal. To say that, when the plaintiff is given condemnation of the lands, and, in effect, title in fee *Page 569 thereto to bedrock, such grant carries with it ownership of the waters percolating in such lands and everything else embraced therein, except as expressly reserved, and thereby the plaintiff becomes the owner of such percolating waters, is but to beg the question as to the right to condemn the lands as and for a mere conduit to carry the waters by seepage and percolation from the dump to the precipitating tanks.
I thus concur in the reversal of the judgment.