(concurring).
I concur, in doing so, it is pointed out that all members of the court seem to agree that the lower court’s decision must be reversed, and that under the Cox Decree the plaintiff is entitled to its minimum rights ahead of subsequent appropriators, but that such subsequent appropriators’ minimum rights are paramount to and satisfiable pri- or to the assertion by plaintiff of its maximum rights. This conclusion, it seems to me, is suggested clearly and imperatively in the Cox Decree.
The differences in interpretation by the members of the court are not what the Cox Decree adjudicates, but in the use of language on the part of the State Engineer, who, in caution, I believe, spoke of one-flow (synonymous with “minimum” and treated as such by the State Engineer, in my opinion) or direct-flow rights only to differentiate such rights from storage rights.
Some confusion may have been generated in Mr. Chief Justice Wade’s statement in the prior opinion1 where, after quoting verbatim from the Cox Decree, which says, in part, “provided, however, that where a maximum and minimum right is herein decreed * * he requoted this language, two paragraphs later, as “where a maximum and minimum right is decreed to the prior appropriator.” The intimation that this latter phrase was intended to have been inserted in the Cox Decree adds something that is not there, — a circumstance that could lead to some doubt resulting in difference of opinion as to what rights were adjudicated. I point this out not to give birth to an argument, but hoping to bury it, since, in the last analysis we are unanimous in our opinion that irrespective of fine distinction as to articulation, the Cox Decree awarded plaintiff 1) certain minimum rights, 2) subsequent appropriators’ certain minimum rights, which, when satisfied, 3) gave plaintiff certain maximum rights.
It seems to me that the only source of divergence in opinion is as to whether the State Engineer’s edict should be upheld or reversed, because of language alone. We are all in accord that the trial court was in error in concluding that the Cox Decree said that plaintiff could assert both its minimum and maximum rights before subsequent appropriators could assert their minimum rights in between plaintiff’s minimum and maximum rights.
. Salina Creek Irr. Co. v. Utah State Engineer, 13 Utah 2d 335, 374 P.2d 24 (1962).