(dissenting):
As I view this case it is suit in equity to reform a certificate for water used by Provo City.
In 1930 Provo Reservoir Company assigned to Provo City an application to enlarge Lost Lake Reservoir so as to appropriate 960 acre feet of water. Provo submitted proof of 799 acre feet of water. From 1932 to 1969, 784 acre feet of water was stored each year except for years when there was not that much water available and in 1965-1967 when only 711 acre feet was stored due to a settling of the dam which impounded the water.
In 1932 Provo City filed an application to change the point of diversion and to change the use of 960 acre feet of water from irrigation to domestic and municipal uses. After some extensions of time, Provo City, in 1972, submitted proof that the largest quantity of water which it could use was 799 acre feet.
On May 3, 1949, the state engineer issued a certificate for only 321.78 acre feet of water. There was some confusion between the applications made by Provo City and Orem City but these two cities have long since settled their differences. The engineer who prepared the proof of the beneficial use of the water by Provo City ceased to act as such and the elected officials of the city made no protests to the certificate as issued. However, the state engineer through his agent continued to deliver 784 acre feet of water (when available) instead of the 321.78 acre feet set out in the certificate;
In view of these facts it seems to me that Provo City should not be turned out of court on a motion to dismiss but should be given an opportunity to show, if it can, that the figure 321.78 was inserted in the certificate because of a mistake of fact and that the proper figure which was intended to be, and should have been inserted, was 784 acre feet of water.
We should affirm the trial court in its refusal to dismiss the action.
CROCKETT, J., concurs in the views expressed in the dissenting opinion of EL-LETT, J.