(dissenting). — It appears from tbe findings of fact that long before tbe inception of tbe alleged right of tbe S alt Lake City Water & Electrical Power Company to tbe waters of tbe Jordan river claimed by it, Salt Lake City and tbe said canal and irrigation companies bad appropriated all of tbe waters of said river flowing therein during tbe dry seasons at points several miles below Utah Lake, from which the river flows, which had not previously been appropriated by parties further down that stream; and bad constructed canals, each several miles in length, into which, by means of headgates, tbe waters so appropriated bad for a long time been diverted and used for beneficial purposes by said city and tbe said canal and irrigation companies, and that they have ever since continued to so divert and use tbe same. In tbe fourteenth finding, tbe following facts were found by tbe trial court: “That in dry seasons tbe flow of tbe Jordan river became insufficient to supply tbe needs of the several appropriators and users, as hereinbefore set forth, and in tbe year 1889 Salt Lake City, the Utah & S-alt Lake Canal Company, tbe East Jordan Irrigation Company, the South Jordan Canal Company, and the North Jordan Irrigation Company entered into an arrangement by which they jointly dredged the bed of the Jordan river, and removed natural obstructions therein, which enabled them to draw tbe water from Utah *270Lake, through the channel of said river, at a level twenty-two inches lower than before such dredging; and during the years 1889 and 1890 the said city and canal and irrigation companies constructed in the river at a point about three-quarters of a mile south and above the old dam, a new dam to enable them to hold back and store the waters of the lake for use when needed, the city and each of said cknal and irrigation companies contributing equally to the cost and expense of such dredging and of the construction of said new dam, which amounted to over thousand dollars, and of its maintenance since. That immediately thereafter the city and said companies commenced, by means of said dam, to hold back and store the waters in said Utah Lake, and in doing so caused certain lands lying and adjacent to the lake to be flooded, in consequence of which a series of suits were commenced' by the farmers of Utah county owning such lands against said city and canal and irrigation companies, which finally resulted in an agreement of compromise entered into in the year 1885, by the terms of which the owners of said lands granted to the said city and canal and irrigation companies the right, so far as their interests or the flooding of their lands was concerned, to hold back and store the waters in the lake until they should rise to a point three feet and three inches above the low-water mark, which point has since been known as ‘compromise point,’ and the exact location of which has become fixed and determined by judicial decisions. Said compromise agreement provided for the election" annually by the parties thereto of a board of five persons, who have since been known as ‘Utah Lake Commissioners,’ under whose direction the rights granted by said agreement should be exercised by the said city and canal and irrigation companies. That ever since 1885 to the present time the said city and said canal and irrigation companies have openly, notoriously, continuously, and adversely against all the world, maintained and used said Utah Lake as a reservoir, and said dam as an impounding dam, to hold *271back and store tbe waters in tbe lake, when necessary to do so, in order to supply their needs during seasons of scarcity of water; and the said city and canal and irrigation companies have each contributed an equal share of all costs and expenses of all matters growing out of such joint enterprises. That said right of storage has been, since the year 1885, recognized and assented to by all the parties hereto, except the Salt Lake City Water & Electrical Power Company, as necessary to preserve and save the waters of the river for the uses of all the appropriators, and said right of storage was and is necessary for such purposes. That each year, during the early part of the irrigation season, the city and each of said canal and irrigation companies have taken from the river and conveyed through' their respective canals water to tbe full capacity of such canals for the use of those entitled to rise water therefrom. That as such seasons advanced, and the waters receded, the superintendents of the several canal and irrigation companies and a representative of the city would make a division of the waters so long as they could agree thereon, and later in the season, when an accurate division would be called for by any of said companies, an engineer would be employed to measure the waters, and divide the portion to which the city and each of said canal and irrigation companies were entitled equally between them. That in making such divisions there has been allowed to flow down the channel of the river such quantity of water as would, with the accretions arising from seepage or other sources, supply the necessities of the prior appropriators.” The trial court further found that: “In October, 1899, the said defendant power company posted, filed, and recorded a notice that it had appropriated the waters of Jordan river theretofore appropriated by Salt Lake City, and which said city was entitled to flow through its said canal, such water to be conveyed through the canal of the Utah & Salt Lake Canal Company to said power plant, and, after passing through the wheels of said plant, to be returned to the city’s *272canal, at a point opposite tbe power plant, nndiminisbed in quantity and unimpaired in quality. And in November of tbe same year a similar notice was posted, filed, and recorded by tbe said Salt Lake City Water & Electrical Power Company giving notice of the appropriation by it of tjae waters of tbe South Jordan Canal Company, to be used in tbe same way for tbe same purjDOse, and returned to tbe South Jordan Canal in a similar manner. . •. . That tbe appropriation of tbe use of such water for and on behalf of tbe power company, in order to be completed, requires tbe use of the city’s canal by said power company through a flume across tbe Jordan river and into the city canal at a point about one mile and a half below tbe heád thereof, and that without such use by tbe power company of tbe city’s canal, tbe appropriation of the use of such water by tbe power company can not be made effective. That tbe said Salt Lake City Water & Electrical Power Company has commenced an action in this court to condemn the right to use tbe canal of Salt Lake City in tbe manner aforesaid, and to make effective its appropriation of tbe use of tbe city’s water. That tbe Salt Lake City Water & Electrical Power Company, at the time when it made and filed its notices of appropriation of tbe waters of tbe Jordan river and located and constructed its power plant upon tbe said river, bad full knowledge and notice of tbe several rights of said Salt Lake City and tbe several canal and irrigation companies aforesaid, and of their several appropriations and rights of storage, as aforesaid, and of the exercise of said right to store wafer in Utah Lake for many years prior thereto.” Among other conclusions of law, the trial court found: “That Salt Lake City, the Utah & Salt Lake Canal Company, tbe East Jordan Irrigation Company, the South Jordan Canal Comp'any, and tbe North Jordan Irrigation Company are entitled to a decree awarding to them, subject to the limitations hereinafter set forth, tbe right to tbe use of all of tbe balance of tbe waters of tbe Jordan river for municipal, *273irrigation, culinary, and domestic purposes, to the extent of the capacity of their several canals, and the right to impound and store all the waters of said river in Utah Lake, and to have their title thereto quieted, . . . and shall have an equal right to use all of such waters, to the extent of the capacity’ of their several canals, and, while there is sufficient water for that purpose, may each take the full quantity of water their respective canals will carry, and, -when the water is insufficient to fill all the canals to their maximum capacity, then the city and canal and irrigation companies shall be entitled to an equal division thereof,” etc., “and that the Salt Lake City Water & Electrical Power Company is entitled to a decree awarding to it the" right to convey to its power plant, and use for the purpose of operating the same, the waters which the city of Salt Lake is entitled to take into its canal so long as said city shall continue to divert its waters at its present point of diversion, and use the same at its present place of use; but the right of the said Salt Lake City & Electrical Power Company to use the city’s said water will be effective only after said power company has established by judgment of the court in an action at law its right to make connections with its flume and the city’s canal, and shall have paid to the city any sum which may be awarded to said city by such judgment by way of damages therefor.” The decree rendered embraces these conclusions of law.
It is clear from the findings of fact that each of said companies and Salt Lake City, at and long before the inception of the rights claimed by the Salt Lake City Water & Electrical Power Company had acquired a vested right, subject only to the, rights of prior appropriators, to have the waters'of the river, and the waters so stored and held back, diverted in the manner and at the place agreed upon by said parties in their said agreement, and at will to change the points of use and diversion, unless the change would impair the prior rights of *274other persons. This vested right can not be impaired by any subsequent appropriation. The Salt Lake City Water & Electrical Power Company has borne none of the expenses of storing the waters or of acquiring the right to flood the land bordering upon the lake, yet it seeks to share in the benefits arising from the storage by making an alleged appropriation, under which it claims the right to divert the water which the city by prior right is entitled to have turned into its canal in pursuance of its previous appropriation and agreement with the canal and irrigation companies, and conduct the same to its power plant on the opposite side of the river, and from thence across the river into the city’s canal one and one-half miles from its mouth. Under the findings the alleged appropriation is invalid, and fails to show that the Salt Lake City Water & Electrical Power Company has acquired any right whatever to enter upon or discharge the diverted water into the city’s canal at the point mentioned. On the contrary, it is clear, not only from the decree, but from the fact that a suit is pending in which said company seeks, under the law of eminent domain, to acquire such right, that it did not exist at the entry of the decree. In the pending suit referred to the Salt Lake City Water & Electrical Power Company does not seek to acquire the right to divert from the head of the Salt Lake City Canal the water so as aforesaid appropriated by the city, but wrongfully claims that it has already acquired that right under its said notices of appropriation of the same, and only seeks to acquire the right to discharge into the city’s canal, one and one-half miles below its head, water which it wrongfully claims it has the right to divert, under notices of appropriation which are invalid so far as they relate to the prior vested rights of the city. As the city is the only party that has appealed, only that portion of the decree which relates to the right claimed by the Salt Lake City Water & Electrical Power Company to divert the city’s water should be set aside.
Eor the reasons stated, I am unable to concur with my associates in affirming the decree as a whole.