(dissenting).
I dissent, adhering to our previous opinion.1
In the former opinion after extensively and correctly quoting from the Cox Decree, *150in analysing the situation, I inadvertently, in requoting a part of what I had quoted before, added the words “to the prior appropriator” which were not contained in the Cox Decree. With these words added, the sentence reads as follows: “The above quoted provision from the Cox Decree deals only with ‘where a maximum and minimum right is decreed to the prior appropriator’ and the priority of all subsequent appropriators’ rights as against the maximum rights of prior appropriators is limited to ‘the minimum rights of all subsequent appropriators.’ ” This sentence should have read as follows: “The above quoted provision from the Cox Decree deals only with ‘where a maximum and minimum right is decreed’ and the priority of all subsequent appropriators’ rights as against the maximum rights of prior appropriators is limited to ‘the minimum rights of all subsequent appropriators’ ”. (Emphasis added.)
The only possible effect that the erroneously added words could have on the meaning of the sentence in question would be to make the sentence quoted in the Cox Decree applicable only where a maximum and minimum right is decreed to the prior appropriator, whereas, without those words, all that would be necessary to make the provision being discussed applicable to all parties would be that there be a minimum and maximum right decreed, even though it were not decreed to the prior appropriator. Since there is no question in this case that minimum and maximum rights were decreed to the Salina Creek Irrigation Company, who was the prior appropriators in this instance, the addition of these extra words would not in any sense of the word affect the meaning of the part quoted. Sc* I feel certain, although I regret very much having mistakenly added those words, that no one could be or was misled thereby.
The following comment taken from the-original opinion is equally applicable to the situation with or without those added words: “The decree states that ‘such prior appropriator shall be entitled only to the minimum rights herein decreed as against each and every subsequent appropriator, until the minimum rights of all subsequent appropriators are satisfied.’ Had this provision ended with the clause, ‘as against each and every subsequent appropriator,’" there would have been some justification for the Engineer’s construction on the theory that by implication it gave priority to all rights, decreed to subsequent appropriators after the satisfaction of the minimum rights of the prior appropriator. However, the last provision leaves no room for implication,, for it expressly states what rights of subsequent appropriators shall have priority.. Such rights are specified as ‘the minimum’ rights of all subsequent appropriators.’1 Since this is stated in clear and unambigu*151ous language, we have no choice but to follow the mandate of the decree.”
I fully agree with that paragraph. I further contend that if we take any other view of the language originally quoted in the previous opinion from the Cox Decree, such as is adopted by the court in this decision, the trial court was correct in holding that the Cox Decree is ambiguous and uncertain and in receiving testimony and evidence on the intention of the court in entering that decree. And if such were the case, the trial court’s decision would have to be affirmed.
McDONOUGH, J., concurs in the dissenting opinion of WADE, J.. 13 Utah 2d 335, 374 P.2d 24 (1962).