I dissent. Since I cannot agree with the holding of the majority of the court, I desire to set forth briefly my reasons therefor. In the first place, no one, including the United States of America, can own the water which flows in the streams of the State of Utah.
Title 73, chapter 1 of Utah Code Annotated 1953 declares in Section 1 that all waters in this state, whether above or under the ground, are hereby declared to be the property of the public, subject to all existing rights to the use thereof. As has been said, the water which may be diverted from the streams of this state may not yet -have fallen within the confines of Utah and perhaps is at this time in the oceans and seas awaiting the clouds and the wind to bring the same to our mountains, where it will be precipitated as rain and snow. There thus can be no ownership of water as there is an ownership of land and other property. There is merely a right to use, and this right must be regulated with reference to the rights of all other people.
Section 4 of the above-quoted title provides in substance that when an appropriator or his successor in interest shall abandon or cease to use water for a period of five years, the right shall cease, and thereupon such water shall revert to the public and may be again appropriated as provided by law.
Section 3 of said title provides that beneficial use shall be the basis, the measure, and the limit of all rights to the'use of water in this state.
Water is the life of an arid state such as ours, and the right to the use thereof must be carefully guarded and perpetually regulated in order that the greatest good may be had therefrom. When the United States of America through its Forest Service or the Bureau of Land Management complies with the laws of the State of Utah and appropriates water, it has the same sort of a vested interest in the right to the beneficial use of water ás any other private citizen has, and it should be subject to the same regulation in the manner in which it uses water as all other citizens. We are not dealing with property secured by the Government of the United States under the right of eminent domain. We are dealing with a proprietary interest; and to permit the agencies of the United States to initiate a claimed right to the use of water and then to clothe that initiated right with a cloak of sanctity and to place it beyond the pale of regulation is to deny to the people of this state the full use of water.
When an application is made for the right to use water in this state, whether that application be made by an agency of the Government of the United States or by a private citizen, it is done with a knowledge that that right is subject to regulation and also with a knowledge that all people in this state are alert to see that the water diverted is put to beneficial use.
*215Chapter 4, Section 1, of Title 73, Utah Code Annotated 1953, sets forth the manner in which each appropriator may prevent others from wasting water. This section provides that upon a verified petition to the state engineer signed by five or more or a majority of water users upon any stream or water source requesting the investigation of the relative rights of the various claimants to the water of such stream or water source, it shall he the duty of the state engineer, if upon such investigation he finds the facts and' conditions are such as to justify a determination of such rights, to file in the district court an action to determine the various rights. The court then can determine whether or not the water is being put to beneficial uses. It is the duty of every person who claims the right to divert water to set forth his claim; and if he fails to do so, under Section 9, Chapter 4, Title 73, Utah Code Annotated 1953, that claimant is forever barred of all rights to the use of water theretofore claimed' by him.
Such a proceeding initiated by the state engineer is not a suit against the Government of the United States. It is simply a regulation by the State of Utah to make sure that the Government of the United States in its proprietary character and all other people who claim the right to the use of water are complying with that part of the law which says that beneficial use shall be the basis, the measure, and the limit of all rights to the use of water in this state.
" Iii the case of Belknap against Schild cited in the prevailing opinion, the Federal District Attorney under direction of the Attorney General of the United States raised objections to any proceedings being had against the Government of the United States. That was a suit involving land owned by the United States and differs from the instant case before this court in two particulars: (a) the United States owns no property in this suit but merely has a right to the use of water; (b) under the direction of the Attorney General of the United States, the District Attorney of Utah raised no objections to the suit herein, but instead he joined in a stipulation and asked the district court to determine the case upon the merits based upon that stipulation.
The dispute in this case arises primarily because the United States owns title to grazing land upon which its permittees pasture large numbers of livestock. The objectors and appellants own small land holdings in the midst of the grazing preserve ; and if appellants could prevent the United States or its grazing permittees from acquiring any water, the value of their own holdings would be greatly enhanced. On the other hand, for the Government of the United States to obtain any rights' superior to those. claimed by appellants, it is necessary that the United States base its' rights to the use of water upon the fact that' private citizens who have grazed livestock upon the lands belonging to the United States have permitted those *216livestock to drink from streams and springs over a period of some seventy-five years.
It seems clear to me that under our law the mere watering of livestock in a public stream or other source of water would give no rights under the statute to the owner of the livestock or to his landlord. In the case of Bountiful City v. De Luca, 77 Utah 107, at page 118, 292 P. 194, at page 199, 72 A.L.R. 657 the court says:
“Under our laws, rights in and to the use of public waters, or of a natural stream or source, may be acquired only by appropriation and by an actual diversion of waters from the natural channel or stream and a beneficial use made of them and as by our statutes provided. Neither the defendants nor their predecessors made any diversion of the waters of the creek for watering live stock or for any other purpose. They, without any diversion, merely permitted animals to drink directly from the creek. That gave them no right to or possession of the use of the waters, for as said by the author, 2 Kinney on Irrigation and Water Rights, 1242, that as: ‘no possession or exclusive property (of water) can be acquired while it is still flowing and remaining in its natural channel or stream, it follows, therefore, that in order to obtain possession of the water attempted to be appropriated, it ' is an indispensable requisite that there must be an actual diversion of the water from' its natural channel into the appropriator’s ditch, canal, reservoir, or other structure.’ ”
However, it would also seem clear that in the desert, animal life needs no appropriated water in order to drink to quench thirst. In the case of Adams v. Portage Irr. Reservoir & Power Co., 95 Utah 1, at page 11, 72 P.2d 648, at page 652, Justice Larson in speaking of water still flowing in streams wrote:
“Waters in this state are of two classes, public waters and private waters. The latter class is not only subject to exclusive control and ownership, but may be used, sold, or wasted. It consists of such waters only as have been reduced to actual, physical possession of an individual by being taken into his vessels or storage receptacles. It is private property and may be the subject of larceny. Public waters, on the other hand, are not the subject of larceny. The title thereto is in the public; all are equal owners; that is, have coequal rights therein, and one cannot obtain exclusive control thereof. These waters are the gift of Providence; they belong to all as nature placed them or made them available. They are the waters flowing in natural channels or ponded in natural lakes and reservoirs. The title thereto is not subject to private acquisition and barter, even by the *217federal government or the state itself. In the interests of order in the social and economic set, rights to the use thereof may he granted to bodies or individuals as provided by law, but no title to the corpus of the water itself has been or can be granted, while it is naturally flowing, any more than it can to the air or the winds or the sunshine.' ‘Such water,’ says Blackstone, ‘is a movable, wandering thing,’ here today and there tomorrow, like wild birds on the wing. But one may obtain a right to the use thereof. He may acquire a right to take or divert the water from the stream or lake and thus reduce such part into his exclusive possession and control, in his ditches, canals, reservoirs, buckets, or other receptacles. Having thus captured the ‘wild,’ he acquires a property right therein as long as he maintains his capture, his possession. * * *
“And so, while water is still in the public, everyone may drink or dip therefrom or water his animals therein, subject to the limitations above noted as to the rights of the appropriator as fixed by law to his quantity and quality.”
It thus appears to me that the district court was doubly right when he ruled that there was no justiciable controversy between the parties to this action. In the first place, a stipulation was signed to the effect that any rights possessed by the Government of the United States would be -inferior to the rights of appellant; and, in the second place, the grazing permittees of the Government of the United States have had and will continue to have a right to water their livestock from natural streams flowing on the land belonging to the United States.
I, therefore, would affirm the judgment of the lower court.
HENRIOD, J., concurs in the dissenting opinion of Judge ELLETT.