I cannot agree with the court's opinion that the language in the stipulation was "not doubtful or ambiguous" and that "the meaning and intent are conspicuously clear and plain." In view of the fact that the Vermillion Company must have intended to give up some of the rights granted it under the Morse decree, the language of the stipulation is puzzling. If, after the stipulation, the Vermillion was to have just what it had before under the Morse decere, the stipulation would have been useless. For that reason, I cannot agree that the Vermillion Company "had the right to call for that amount of water [37.80 c.f.s.] to the extent needed and desired in all seasons." And for the same reason, I cannot agree "that all the Vermillion's rights under the Morse decree remain intact, are not reduced or impaired by the contract settling rights, but are preserved and protected thereby."
The Morse decree gave the Vermillion Irrigation Company, as one of the parties having primary rights, 37.80 c.f.s. all the year round out of the natural flow of the river. It is unthinkable that if the Vermillion Company meant to preserve just this same right — give up nothing — it would have gone through all the throes of endeavoring to find *Page 425 language in the stipulation, awkward at its best, to accomplish this very same thing. When the expression relating to water accumulating between the dams is examined in the light of the history leading to the negotiations, the use and meaning of these words becomes even plainer. When the Morse decree was signed in 1906, there were no large storage reservoirs involved. All rights were direct flow rights and there was no need of limiting these for the growing season. The Sevier Bridge and Piute Reservoirs were constructed to catch the run-off and use it during the irrigation season. Then it became necessary to know during what periods they could take the water for storage and how much. None of the companies having all-year rights would have been compelled to yield anything except what they could not, under any guise, show they were not putting to beneficial use during the nonirrigating season. But these reservoirs were also of use to them to store waters in the irrigating as well as nonirrigating season so that they could more economically use their water. They could then store it and spread the use of it over the growing season according, not so much to the flowing quantities, but as they needed it. This made an incentive for stipulating limitations on their rights during the non-irrigating season. And this led to the signing of the stipulations of February 20, 1931, mentioned on page 411 of this volume, by which these primary water right users limited their period of use from April 16th to October 15th of each year. The Vermillion Company wanted better terms than the other primary users. The other users were willing to forego the use of any waters between October 15th and April 16th of each year (this was subsequently changed to deny water from September 30th to April 1st of each year, except that the Vermillion Company did not join in this amendment). But the Vermillion Company would not forego all of its winter water. What did it really forego? Respondents say all except the "make" between the Annabella and Vermillion dams. Appellant says the Vermillion Company was willing to forego the right to have *Page 426 the winter natural stream flow past its intake as it was entitled to have under the Morse decree but it wanted the privilege of taking up to 37.80 c.f.s. from what flowed betweenthe dams, whatever that might be.
It seems to me that the court has gone further than the Vermillion claims. It puts the Vermillion Company where it was before the stipulation; that is, gives it the right to call for up to 37.80 c.f.s. just as it had under the Morse decree from the stream as it originally flowed before storage rights were obtained.
I think the key to the situation lies in the water to which the Sevier Valley Roller Mills Company was entitled. Under the stipulation it was entitled to "all the waters decreed herein to the Annabella Irrigation Company and Vermillion Irrigation Company through the millrace of said Sevier Valley Roller Mills Company in Sevier County for power purposes only, during the whole of each and every year." The prevailing opinion banks on the contentions made by appellant, to wit, that the Roller Mill water is described in terms of the water of the Vermillion and Annabella companies. The argument seems to put a little reverse English on the clause. The argument runs as follows: If the Roller Mill was entitled to use all the water which the Vermillion and Annabella companies were entitled to use and the Roller Mill was entitled to run through its millrace all of the water which came down the stream for the benefit of those two companies, then those two companies are entitled to use all the water which runs through the millrace of the Roller Mill. The fallacy lies in this, that the measure of the right of the Roller Mill was what under the Morse decree the Vermillion and Annabella companies were entitled to. It was not intended to measure the right of the Vermillion and Annabella companies by what the Roller Mill used. Since the Mill had a non-consumptive right, the measure of its right under a stipulation between it and all the other parties to the stipulation could still be measured in terms of the rights of the Vermillion and Annabella companies under the *Page 427 Morse decree. But where a long stipulation which contains by contract the law which is to prevail not among all as much as between various groups, is signed by all parties, it does not necessarily mean that some provision of the stipulation made to govern parties A. and B. should also control as between C. and D., or between A. or B. and C. A stipulation in respect to water matters is in many cases a bundle of special stipulations between different sets of all the parties that sign the stipulation. It may in cases be quite hazardous and even unfair to use part of the stipulation meant to fix the rights between A. and B. to construe another part of the stipulation between A. or B. and C. It seems to me this is the situation in the case at bar. Part of the stipulation which measures the Roller Mill water in terms of Vermillion and Annabella former water rights is used to support a claim of the Vermillion Company that as between Vermillion Company and respondents, the Vermillion Company right was as specified in the Roller Mill part of the stipulation, when it was apparent that the rights of those two companies under the old Morse decree unchanged by the stipulation was used to measure only the nonconsumptive right of the Roller Mill. Therefore, I cannot agree with the statement in the opinion that "the controlling feature of the provision, militating against respondents' contention, is in its recognition that water taken out of the river at a point some distance south of and upstream from the Annabella dam is water of which the destination and useis intended and decreed to the two canal companies mentioned." (Italics added.) For the reasons above stated, I think the italicized portion is not a correct statement of the facts.
What I think the Vermillion Company and respondents had in mind when they negotiated was about as follows: The Vermillion Company was willing to make some concession to the storage company for the right to have its summer water stored and subject to call, but being in an enviable position where the storage companies would largely be compelled to grant that privilege at all events as an incident to *Page 428 the distribution of other waters, it was not willing to forego all of its winter water as were the other primary users. Neither was it willing to accept just the "make" of the river between the two dams. Jorgensen, representing the Vermillion Company, said that in the negotiations "There were other words suggested, such as `arising' and such as the `make' of the river between the two points." "They were all discarded and the word `accumulation' was used as sufficiently explaining what water we were referring to." This illustrates, it seems to me, plainly that the Vermillion Company was not willing to be held to the mere `make' of the river, but it also indicates just as strongly that it was willing to forego its absolute right to 37.80 c.f.s. which it had under the Morse decree. Otherwise, as said before, why all the negotiating? All the Vermillion Company would have had to say would have been: "We will not stipulate. We will stand on our Morse decree rights." What was done was this:
"As long as there is any water between the dams we shall have the right to take up to 37.80 c.f.s. And during the irrigation season we have a right at all events to that amount, but during the nonirrigating season we shall have the right up to that amount, not absolutely, but only from the water between the twodams."
It may be argued that since the reservoir companies must under the stipulation with the Roller Mills leave down for that company the 37.80 c.f.s. which the Vermillion Company under the Morse decree was entitled to, that there will "accumulate" between the two dams at least that amount of water and that, therefore, it amounts to the same thing as if the Vermillion Company could call for the 37.80 c.f.s. at all events. But a closer view will reveal that the situations are not the same. Under that part of the stipulation between the Vermillion and the respondents the former can only take its 37.80 c.f.s. from the "accumulation." If the "accumulation" is lessened because the storage companies during the nonirrigation season need no longer supply the Roller Mills, then there will be a lesser amount between the *Page 429 dams from which the Vermillion can draw. But the prevailing opinion makes it obligatory on the storage companies to leave down at all events for the Vermillion Company 37.80 c.f.s. whether or not the former purchase the rights of the Roller Mills Company. It is in this respect that I consider the majority opinion in error. And it is for this reason that I think the opinion in error when it takes the measure of the water to which, under the stipulation, the Roller Mills is entitled and infers from that measure a recognition that the Vermillion Company was entitled to use that water at its point of use.
The majority opinion also relies for its support on certain claimed hardships to the 1200 users of Vermillion water. But that is not sufficient to permit this court to vary the terms of the contract. It may be that the "pickup" of the river during the nonirrigation season would not be sufficient to make that amount of water go through the canals to the lands and stock of appellant, but the matter is not as bad as is painted. Despite the statement in the prevailing opinion that the "pickup" water would not provide domestic or culinary water beyond the extension companies, the stipulation provides:
"In computing water to be distributed to the rights hereinbefore set out in Section A, there shall be allowed to the credit of said rights 22 c.f.s. as and for the make of the river between the said two Kingston gauging stations and the gauging station known as `Sevier River Below Piute Dam,' as now located below the dam of the Piute Reservoir Company.
"In addition to the rights hereinabove set out under `Section A' hereof, the owners and users thereof, except as hereinabove otherwise provided, shall have the right to such use of the waters of Sevier River and its tributaries as may be reasonably necessary for culinary, domestic and/or stockwatering purposes, to be distributed to them under the supervision of the Sevier River Water Commissioner, at their said respective points of diversion, during the remainder of each year, where use is not herein provided for irrigation purposes.
"Whenever the waters available for distribution in said river, flowing in said Section A, are insufficient to supply all the waters of each class therein, then each said class shall have precedence in their order *Page 430 as herein set out, and the rights of each party in each said class shall be diminished pro rata."
It may be that under this section when the water to which appellant is entitled does not actually reach it, it may be entitled to a diversion of sufficient carrier water to transport culinary, domestic and stockwater on the theory that the use in such cases by the actual physical situation is not "provided for irrigation purposes." But we are not required to solve that problem.
The prevailing opinion says:
"The contention of respondents that the first and general clause of the contract cannot operate at all except in times of shortage or of a special emergency, requiring proration among those enjoying equal priorities, cannot be upheld. We cannot indulge the assumption that a rule of action prescribed for special emergencies only was intended to exclude all benefits whatever except emergency benefits." (Italics added.)
The meaning of this language is not clear to me. The last sentence seems to contain a contradiction. Are we to presume that a "rule of action" made for the purpose of taking care of a shortage or an emergency is to be extended to cases where the rule of action is not applicable?
To sum up: (1) I agree with the prevailing opinion that the word "accumulation" means more than the "make" of the river; that it means that water which flows between the dams. I think this is also borne out by the following, mentioned by neither party nor in the prevailing opinion. The stipulation reads in part as follows:
"* * * provided, however, that whenever the water yieldedbetween the Annabella Dam and the Vermillion Dam shall not besufficient to supply to said Vermillion Canal Company the said37.80 c.f.s., then the rights hereinbefore mentioned and set out as primary rights under Section A shall prorate equally with thesame Vermillion Canal Company. 37.80 c.f.s."
The respondents correctly state that, outside of a few fragments, there was no water distributable during the nonirrigation *Page 431 season after the stipulation of 1931 among the primary direct flow users under the Morse decree, because they all agreed to forego such use to permit storage. Consequently, and to my mind correctly, respondents argue that the part of the stipulation above quoted could not have meant proration during the nonirrigation season because there was nothing to pro rate. If this is true, why were used the words "water yielded between the Annabella Dam and the Vermillion Dam" to cover the irrigation season, when during that season the Vermillion Company was unquestionably not restricted to water "yielded" between the dams but to the flow up to 37.80 c.f.s.? It thus appears that the term "yielded" was used to designate water "flowing" between the two dams. (2) I do not agree with the prevailing opinion that the Vermillion's right is as under the Morse decree, but that it takes its water during the nonirrigation season only from such water as may flow between the two dams. The respondents are not required to keep sufficient flowing between those two dams to supply the Vermillion Company during the nonirrigation season with 37.80 c.f.s. because of any right on the part of saidcompany to demand at all events such amount. The Vermillion Company is entitled to take such amount of the water as "accumulates" (flows) between the two dams, but if it does not flow because the respondents purchase the Roller Mills' right of flowage or for other reasons, the Vermillion Company cannot demand that such amount, nevertheless, be left down during the nonirrigation season.