(concurring). — It appears that the inhabitants of Herriman are an agricultural people, and for many years have been dependent upon the waters flowing from Butterfield creek, for the purposes of irrigation and culinary purposes. To this stream, and to the waters of the springs that have flowed into it, they have established their right. Whenever such right is established in the first appropriator of water, it should be protected by the courts.
The testimony taken in this case is conflicting, contra*116dictory, and not altogether satisfactory; yet to my mind it tends to show that, prior to the construction of the defendants’ tunnels, large quantities of water did flow from plaintiff’s springs into Butterfield creek. After the construction of said tunnels, this flow of water was greatly diminished, and some of the springs dried up. It also appears that small underground water courses, seams, or channels and fissures in the rocks, through which water had once run that fed some of plaintiff’s springs that flowed into the creek, are still', visible. These underground watercourses that fed the plaintiff’s springs prior to the construction of the defendants’ tunnels, shown, in some instances, to be well defined, were cut by the defendants’ tunnels and considerable water that formerly fed the springs was carried through them into the stream below, and was thereafter appropriated and used by the defendants to the injury of plaintiff, and the water accustomed to flow from the springs to the creek thereby- diverted. It also appears that considerable water flowing out of the mouths of the tunnels is seepage water that has no connection with plaintiff’s springs, and to which the plaintiff can lay no claim.
While it is extremely difficult to determine, from the evidence, the actual amount of water diverted by the defendants from the springs, yet it is quite manifest from the facts and circumstances shown that about one-half of the water flowing ‘out of the tunnels was diverted from the plaintiff’s springs, in the manner aforesaid, by the construction of the tunnels, and this caused many of them to dry up, and impaired the flow of waters from others. It appears that there were 106.64 cubic feet of water per minute running into the creek at the dividing gate below the mouth of the tunnel. There was turned into the creek from both tunnels 74.19 cubic feet of water pér minute, and there was taken out by defendant Keel, at the point of diversion, 53.34 cubic feet per minute. This amount would vary according to the seasons; seventeen per cent was allowed by the trial court for seepage and evapora*117tion, although not over eight per cent is shown to be lost in this way. The court allowed the defendants to take eighty-three per cent of water flowing into the creek from said tun,-nels, making .a deduction of seventeen per cent for seepage and evaporation, thus allowing the defendants practically all the water flowing out from the mouth of the tunnels. After considering all of the testimony, I have come to the conclusion that the amount of the water allowed to the defendants should be reduced to fifty per cent of the water flowing into the creek from the tunnels; that only eight per cent, instead of seventeen per cent should be allowed for seepage and evaporation, and that the findings and decree should be modified to the extent of allowing the defendants fifty per cent of the water flowing iiito Butterfield creek from the tunnels, after deducting eight per cent for seepage aud evaporation while it is passing to the point of diversion at the defendants’ dam — the same to be diverted as provided in the decree and findings. The costs should be equally divided. In other respects, I concur in the opinion of Mr. Justice Bautcb;.
It is ordered that the cause be remanded, and the court below be hereby directed to modify the decree so as to award to the defendant only fifty per cent of the water flowing from the defendant’s said tunnel .into Butterfield creek, less eight per cent for seepage and evaporation while the water is passing to the point of diversion, and that the costs be equally divided between the parties.
BASKIN, J.This case was before us on a former appeal, and the decree was reversed and the case remanded for a new trial. 19 Utah 453, 57 Pac. 537, 51 L. R. A. 930.
The following facts, disclosed by the record, are not controverted, to-wit: “That in or about the year 1852 various settlers upon the lands in and around what is known as the village or settlement of Herriman, in this county, and the *118beads of families, appropriated for beneficial use in irrigating lands, and for domestic and culinary purposes, all tbe waters then flowing in Butterfield creek at the point of diversion (which is about two miles above the village or settlement of Herriman), and the land upon which the water was used; and they, and their successors in occupation and interest, have ever since used all the waters flowing in said creek for the irrigation of said land, and for domestic and culinary purposes, except such waters as have been taken out by defendants, under claim of right so to do, during and since the year 1894, which right is contested by plaintiff. That the persons entitled to the use of the waters of said creek, under the appropriation made by the settlers in 1852, organized the plaintiff corporation for the purpose of controlling the use and distribution of said waters according to the respective rights of the incorporators and shareholders, and conveyed to it the said waters for such purposes, and the plaintiff corporation is the owner of, and represents all parties beneficially interested in the appropriation of, said waters, and the use thereof under the apropriation made in 1852.” That the defendants, in the prosecution of their mining business, and for the purpose of reaching and developing ore bodies believed to exist under the surface of the ground, in 1892 commenced to drive the But-terfield and Queen tunnels into the mountain lying to the north of Butterfield creek, and have extended each of them several thousand feet into the mountain; that in driving said tunnels the waters thereby developed were conveyed into Butterfield creek at a point opposite the Butterfield tunnel, several miles up the creek from the plaintiff’s point of diversion. That the defendants, other than the Butterfield Mining Company, in and since 1892 fenced and have occupied about’2,800 acres of land situated several miles below the point at which the water from the tunnels flows into Butterfield creek, and claim to have acquired from the defendant company the waters flowing from the tunnels to irrigate and reclaim said land for farming *119and other purposes, and have constructed a head gate in the creek two or more miles below where the waters of the tunnels enter the creek, and, by means of a ditch leading from the head gate to said land, claim the right to conduct through the ditch, onto said lands, for the purposes mentioned, the same quantity of water as is discharged from the tunnels into the creek; that the defendant company owns the land where the waters of the tunnels are discharged into the creek, and the lands through which the creek runs for a distance of one mile below the point of discharging, and that from thence for about one mile it runs either over government lands or lands owned by other parties not connected with the plaintiff, and who make no objection to the use of the channel of the creek to carry the waters flowing from the tunnels. The plaintiff claims the right to divert, at the point of diversion before men? tioned, all of the water of Butterfield creek, and seeks to enjoin the defendants from continuing to divert any portion of the same; and the defendants, in the cross complaint, claim the right to divert from the creek a quantity of water equal to that which flows into the creek from said tunnels, and pray that the respective rights of the parties, in the waters of said creek, may be determined and settled.
On the previous trial the defendants were awarded eighty-three per cent of the water which flows from the tunnels, less seventeen per cent on account of seepage and evaporation. On the second trial the court below found “that the driving of said tunnels, or either of them, did not dry up or diminish the flow of any spring or springs in Butterfield canyon, or in Tooele fork or Spring gulch, or any spring or springs flowing into Butterfield creek, or any tributary thereof. If any such springs died up or diminished the flow, it was from other causes than said tunnels, or either of them” —and decreed “that the plaintiff is entitled to all the waters naturally flowing into Butterfield creek, in Butterfield canyon, Salt Lake county, Utah, and to divert the same therefrom, not *120including, however, the waters flowing from the Queen and Butterfield tunnels in said creek; ánd that the Butterfield Mining Company is entitled to all the waters issuing from the Queen and Butterfield tunnels in said canyon, and its right and title thereto are hereby confirmed in said Butterfield Mining Company against said p-laintifE.”
While there was testimony which tends to support said finding, it is clearly against the preponderance of the evidence. It is shown, by an overwhelming preponderance of the evidence, that many of the springs which for more than forty years had continuously fed Butterfield creek ceased to flow while the defendants’ tunnels were being driven into the mountain, and have since been dried up. A. F. Doremus, an expert engineer, and a witness for the defendants, testified that he was unable to account for the drying up of springs shortly after the Butterfield tunnel was run, that, if springs dried up shortly after the tunnel was run, he would look to the tunnel’ for the reason of their drying up; but that he did not see how the tunnel could affect springs in Spring gulch or Tooele fork, but did see how it could affect those near the tunnel, and thought it might dry them up, and thought it possible that the tunnel dried springs on the road about a quarter of a mile above the mouth of the tunnel. Professor James E. T'almage, an expert called by the plaintiff, testified that “the streams coming into the tunnel vary in size, coming through cracks and fissures which the water has worn away, and they can be traced for some distance. From the fact revealed from observation, and from the statement that from 1852 to 1893 the springs which are now dry flowed continuously without ■appreciable variation, and in 1893 the tunnel encountered water which flowed out of the tunnel, and more water was encountered, as the tunnel was constructed until 1895, when all the springs dried up, I would say the sources of the springs had been tapped, and their water passed out of the tunnel.” E. S. Hinckley, an expert witness called by the plaintiff, testi-*121fled as follows: “In my opinion, taking into account tbe conditions — tbe former existence of tbe springs, tbeir continuous flow from 1852 until tunnel was driven, tbe fact that they immediately stopped flowing when water was encountered in tbe tunnel — the driving of tbe tunnel was tbe cause of tbe drying up of tbe springs.”
Erom tbe fact that a number of springs which, prior to tbe time when tbe tunnels were driven, bad continuously flowed for so many years, dried up as soon as tbe tunnels were driven into tbe mountains, tbe conclusion is irresistible that the tunnels cut tbe underground channels through which tbe springs were supplied, and tbe waters which bad previously flowed from tbe springs into Butterfield creek were thereby drawn into tbe tunnels, and were conveyed through tbe tunnels into the creek at a point different from those at which these waters bad formerly entered said stream. This court so held on tbe former appeal. Tbe foregoing facts were shown by tbe record on the previous appeal, and upon those facts this court decided “that tbe defendant company did not acquire a right to any of tbe water flowing from said tunnels except such as was developed by percolation, and that tbe plaintiff retains tbe right to -all tbe water flowing in tbe natural channel of But-terfield creek, diminished only to tbe extent of the' increase of tbe quantity of water which naturally flowed in tbe channel of Butterfield creek before said tunnels were run and said springs were dried up,” and on those grounds reversed the former decree, but remanded tbe cause only because tbe evidence failed to show tbe amount of such increase.
Erom tbe nature of tbe case, tbe exact amount of water which tbe tunnels draw from tbe springs, or which originates from other sources, can not be established by evidence; it is, therefore, only necessary to show tbe approximate amount. It is clear from tbe evidence that at least one-half of tbe water which flows from tbe tunnels into Butterfield creek is drawn from tbe underground channels of tbe springs which were *122dried up. As tbe controlling facts established by tbe evidence introduced at tbe second trial -are tbe same as those established by tbe evidence on tbe previous trial, and tbe questions decided on tbe former appeal were presented by tbe record, and were, as they are in tbe present instance, necessary to tbe determination of tbe case, said decision is decisive, for it is a firmly settled principle that tbe decisions of appellate tribunals constitute tbe law of tbe case upon all points, presented by tbe record, involving tbe merits, and can not be reviewed on a second appeal.
Tbe peculiar facts in this case are materially different from tbe facts upon which any other decision of this court, in respect to water rights, is based, and tbe principles governing tbe same are entirely different. No authorities were cited in support of tbe former decision in this case. It is sustained by tbe following cases: Smith v. City of Brooklyn, 46 N. Y. Supp. 141, affirmed in 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664; Forbell v. City of New York, 56 N. Y. Supp. 790, affirmed in 61 N. Y. Supp. 1005; Smith v. Adams, 6 Paige 435. It appears in tbe case of Smith v. City of Brooklyn, supra, that there was on plain-, tiff’s farm a stream of water running in a well-defined channel fed by springs and from other sources; that tbe stream many years ago bad been dammed, forming a pond, and that both bad been in existence for more than fifty years; that tbe plaintiff used tbe pond for boat building and obtaining ice, and it was of considerable value for those purposes. Tbe defendant, for tbe purpose of furnishing tbe city of Brooklyn with a water supply, constructed an aqueduct for tbe purpose of conducting tbe water from a reservoir which was filled by means of wells and pumps upon its own lands, situated at.a distance of 2,400 feet from plaintiff’s pond and spring, and tbe waters which fed tbe springs supplying water for tbe plaintiff’s pond were thereby diverted, and tbe stream and pond dried up. Tbe court, it appears, affirmed tbe plaintiff’s *123judgment for damages. 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664. Tbe points decided in the case are stated in the syllabi as follows: “If a city, by the operation of a water system consisting of wells and pumps, on its own lands, drains the contiguous territory, and thus diverts and diminishes the flow of water in a natural surface stream on the land of another, it is answerable in damages, under the rule that no one may divert or obstruct the natural flow of a stream, for his own benefit, to the injury of another. The water of a natural, surface stream is for the benefit of all the riparian owners; and to divert or diminish its flow in any way, including an interception of underground waters, is an interference with a natural right, which will give rise to an action for the injury sustained. Whatever may be the rule with respect to the right of a landowner to use the water percolating through the earth, and thereby to affect the sources of wells or springs upon his neighbor’s land, he may not divert and diminish the natural flow of a surface stream by preventing its usual and natural supply, or by causing, through suction or other methods, a subsidence of its waters.” When the case was before the Supreme Court (46 N. Y. Supp.), in addition to the foregoing points, it was held: “The right of an owner of land to divert or consume percolating water does not extend to authorizing the destruction of a stream, spring, or well by cutting off its source of supply, when the acts causing such result are not done for the beneficial use and enjoyment for any purpose of the land itself, whereon they are done, but for the sole purpose of gathering water by pumps, as well as by natural means, to be carried to a distant place for the use of strangers having no right to the water, as against the owners of the neighboring lands.” This was sustained in 61 N. Y. Supp. 1005, and 56 N. Y. Supp. 790. In the latter case, Smiith:, J., in the opinion, said: “Previous to the decision of the appellate division of the Supreme Court in the Second judicial department in the case of Smith v. City of Brooklyn, 18 App. Div. *124340, 46 N. Y. Supp. 141, the tendency of the decisions of the courts of this State was against the contention of the plaintiff in this case, and in favor of the proposition that an action would not lie against the owner of the land who intercepted or diverted underground currents of water to the injury of another. In the Smith case, the operation of a pumping station lowered the spring level of the surrounding country, and dried up ahtream and pond belonging to the plaintiff. The court held the city liable for damages. The court, in its decision, distinguished the case from other cases previously decided in this State, on the ground that in the case at bar the cutting off of the source of supply of the plaintiff’s stream and pond was not done, in the exercise of the legal right of the •defendant, to improve its land, or in connection with the enjoyment of the land itself, but for the sole purpose of gathering and conveying the water to a distant place for the use of the inhabitants of the city. The reasoning of the court in the case so appeals tó‘ a sound judgment and keen moral sense as to be unanswerable.” There is no material difference in the facts involved, and the principle applied, in the case of Smith v. City of Brooklyn, and the facts involved, and the principle applicable thereto, in this case.
The defendant company’s business was mining, and not farming, and the purpose in running the tunnels was the development of its mines. It has not used any of the water on its own land for farming purposes, nor does it intend to do so; for it is alleged in the cross complaint filed by it and its codefendants that its codefendants have acquired from it the waters flowing from the tunnels, to irrigate and reclaim their lands for cultivation. It is a matter of common knowledge, and the courts will take notice of the facts without proof, that irrigation is the life of agriculture in this State; that the high mountains are cut by deep canyons, through which flow streams of water which are supplied from springs issuing from the mountains; that these springs are usually fed from sub*125surface channels or fissures in the rocks; that tunnels driven at a great depth and distance into the mountains cut these channels or fissures, and dry up or diminish the flow, not only of springs near the tunnels, but of those remotely situated; that along the course of these streams, and in the valleys into which they flow, a majority of the inhabitants of the State reside; that towns have sprung up, and large areas of land have been reclaimed and brought to a high state of cultivation, by irrigation from said streams. If it were established that the owners of tunnels which divert from their natural flow the waters which supply these streams have the lawful right to divert from the streams, and dispose of, such water after it has passed from the lands of such owners, most of the irrigating streams of the State can be diminished, to the irreparable damage of the inhabitants whose agricultural interests depend upon irrigating streams. Erom the commonly known fact that tunnels like the ones in question dry up springs in their vicinity, it must be presumed that the defendant company was aware, when the tunnels in question were started by it, that the springs which fed the Butterfield creek were liable to be dried up, or their flow materially diminished, thereby, to the great damage of the inhabitants of Herriman. Erom that commonly known fact, the effect of running the tunnels in question was not less apparent, when they were started, than was the effect of the acts of Brooklyn city from the facts in the case of Smith v. City of Brooklyn, supra. The question under consideration has not been decided by this court except in the ease at bar. In neither of the two cases (Irrigation Co. v. Michaelson, 21 Utah 249, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687, and Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444, 54 Pac. 244, 70 Am. St. Rep. 810), were the waters of a natural stream, which* had previously been appropriated, diverted, or the natural springs, by which the streams were fed, dried up.
I, therefore, concur in the order directing the court below to modify the decree.