(dissenting in part).
I concur in the conclusions reached by my Associates on all points except those relating to the extent of certain of the defendants to divert from plaintiff’s canal continuous streams of water for culinary and domestic purposes which, in some cases, is also used for irrigating gardens and orchards. Attention is invited to the probable loss of water by seepage and evaporation in case those who have acquired a vested right to a constant stream for culinary and domestic purposes are permitted to continue to exercise such right. Reference is also made to the amount of water in second feet that it would require to furnish each of these parties with a given quantity of water for the beneficial purposes for which they have heretofore appropriated and used it. Of course, these parties are not entitled to divert or have turned to them more water than is reasonably necessary for the beneficial uses to which they have heretofore applied it. If, however, it is necessary for each of, them to divert a given quantity of water from the canal to supply their homes with potable water for culinary and domestic purposes, and they have by long and continuous use acquired a vested right to divert or have turned to them such quantity of water, I know of no rule of law or principle of equity by which they, or any of them, can be deprived of, *592or curtailed in such, rights in order to increase tbe supply of their cotenants for farming purposes.
The evidence, without conflict, shows that defendants, Vincent Shurtliff and his wife, Mary (Sadie) E. Shurtliff, and their predecessors in interest, have continuously, and practically uninterruptedly for about ten months of each and every year, for more than forty years, diverted from plaintiff’s canal, referred to in the record as the South Fork of the Tanner Ditch, a stream of water of not less than one-half second foot, and conveyed the same in an open ditch to their residence and theré used the same for culinary and domestic purposes. The record also shows that this stream of water has also been used by the Shurtliffs during the irrigation season for irrigating an orchard and garden. On this point Mrs. Sadie E. Shurtliff testified in part as follows:
“We bought our place in the fall of 1883 and took possession in the spring of 1884, and have lived there ever since. * * * Ever since we have been there we have used a stream of water for culinary, domestic, and stock purposes from the South Fork of the Tanner Ditch. We have been entirely dependent upon it. We have lived in the house where we now live 19 years. We have always had from 10 to 15 dairy cows, from 40 to 50 head of young stock, from 8 to 10 head of horses, and some poultry. * # * We used the stream of water that now runs to our house for culinary purposes, and there is land there with orchard and gardens in it, and we let it run there too. ’ ’
She further testified:
“From my experience in using this culinary water, and from the use to which it has been put right .from the beginning, I would say that it would not be possible to get along with less water than we have had. ’ ’
A. F. Doremus, a civil engineer, testified in part as follows:
“I measured the culinary stream of water leading from the South Fork of the Tanner Ditch down to the Shurtliff house (April 7,1913). It measured substantially half a second foot. I measured it at a point near where it is diverted from the South Fork of the Tanner Ditch. * * * It seems there was a considerable decrease in the flow. * * * There was *593a less flow at tbe house than at the point where I measured it. It appeared to me that the condition of the water wasn’t any too good for drinking purposes, still they use it for that purpose, and apparently for stock purposes. * * * They could not consume it all. There would be some that would pass, but, as far as the volume there, it seemed to me necessary for the purity of the water. * * * I did not follow it out to where it went to (after it passed the house). It seemed to me it was flowing in an orchard below.”
Vincent Shurtliff, one of the defendants, testified:
“The stream which Mr. Doremus measured is about the size stream I have diverted since moving into my new house (19 years). This size stream is necessary in order to reach me and supply me with culinary water and water for domestic purposes.”
And again:
“Besides using this stream for culinary purposes, I had an orchard at the north of my house, and also had an orchard at the south, a little southeast, and I would water these two tracts of land and also the land that runs right down by the creek. Probably it would amount to three acres, maybe four.”
The evidence shows that the bed of the ditch through which this culinary stream of water flows is “very gravelly and porous,” and that “much of it (the water) is lost before it reaches the house.”
No claim is made, nor does the evidence show, that the ditch has been, or is being, maintained in a condition that causes unnecessary waste by seepage or evaporation, considering the character of the land on which it is located. The means, therefore, by which this stream of water is, and for more than forty years has been, conveyed from plaintiff’s canal to the point where it is used for culinary and domestic purposes and for irrigating an orchard and garden, are the same as those usually, and almost universally, used by farmers and other water users throughout the farming district of this arid region, namely an open trench or ditch with bed and banks consisting of the natural soil through which it is constructed. The Shurt-liffs and their predecessors in interest have, by the continuous and practically uninterrupted use of this culinary stream for *594more than forty years, acquired a vested right to use it for the purposes mentioned. Article 17, Constitution Utah.
It has been suggested that, in order to prevent loss by seepage and evaporation, or to reduce such loss to a minimum, the Shurtliffs should xbe required, as a condition precedent to their right to continue to divert and use the water for the purposes mentioned, to adopt a more economical method of conveying the water to the place of use than the one heretofore and now being used by them. No particular method is suggested. The only means of diversion other than the open trench or dirt ditch in vogue in this state that we know of is the conduit ditch or canal lined with wood, stone, or cement, and the pipe line, either of which is much more expensive to construct than is the open, unlined, trench or ditch. The Shurtliffs, and their predecessors in interest, having adopted the usual and customary means of diverting and conveying to their premises the culinary stream of water mentioned, in vogue in this state, I know of no rule of law or principle of equity that can be invoked to support a decree compelling them to construct or install a more expensive method of diversion. But, as I have heretofore suggested, they have acquired a vested right to continue to appropriate by their present means of diversion the same volume of water from plaintiff’s canal heretofore diverted and used by them. They are protected in this right by Article 17 of the Constitution of this state, which provides:
“All existing rights to the use of any of the waters in this state for any useful or beneficial purpose, are hereby recognized and confirmed. ’ ’
At the time the Constitution was adopted and went into effect, this culinary stream of water was being, and for more than twenty years had been, continuously and uninterruptedly used by the Shurtliffs and their predecessors in interest for the purposes mentioned.
The following authorities also support the foregoing conclusions: Long, Irr. Section 42; 3 Farnham, Water and Water Rights, Section 675; 1 Wiel, Water Rights (3d Ed.) 526; Little Walla Walla Irr. Union v. Finis, 62 Or. 348, 124 *595Pac. 666, 125 Pac. 270; Barrows et al. v. Fox, 98 Cal. 63, 32 Pac. 811.
In the last case cited the court said:
“Ditches and flumes are the usual and ordinary means of diverting water in this state, and parties who have made their appropriations by such means cannot be compelled to substitute iron pipes, though they may be compelled to keep their flumes and ditches in good repair so as to prevent any unnecessary waste.”
I therefore, as to this point, think that on a remanding of the case the trial court should make findings and enter a decree awarding the Shurtliffs the right to take from plaintiff’s canal at the intake of the ditch one-half second foot of water for culinary and domestic purposes and for irrigating a garden and orchard.