(concurring):
A cardinal rule of appellate review precludes this Court from substituting its judgment on factual issues for that of the trial court. However, that rule is subject to certain exceptions, one of which is that when the decision is not supported by reasonable and substantial evidence it is subject to reversal.
Consistent with the foregoing, a careful review of the record reveals that there is no reasonable evidence to support the conclusion that the “AA” water is appurtenant to the 57-acre tract in which plaintiff is entitled to a dower interest. Rather, there is substantial, compelling evidence to the contrary and that said water is in fact appurtenant to the 120-acre tract owned by defendant.
The so-called “Cox Decree” established that the “AA” water was to be diverted into the Gunnison Fayette Canal and used to irrigate lands under its system. The decree refers only to land on the canal system of the Gunnison Fayette Canal and water supplied thereby could never reach the 57-acre tract due to the topography of the area, i. e. the uphill lie of the land. This is emphasized by the fact that only the subsequent granting of the application for change of point of diversion made it possible to irrigate the 57-aere tract by use of the Dover Canal.
The water rights of Howard Roberts represented by the Decree passed to the defendant as grantee of the 120-acre tract to which they were clearly appurtenant. This is so because the rights thereto were not expressly reserved to the grantor.1
The fact that Howard Roberts made no express conveyance of the water rights, and that he filed the change application, is not to be considered as evidence of retention of ownership for it will not suffice for the necessary reservation of water rights in express terms as provided by statute.2
I am compelled, to conclude, as does the majority opinion, that the trial judge erred in finding the water to be appurtenant to the 57-aere tract instead of the 120-acre tract.
CROCKETT, J., concurs in the views expressed in the concurring opinion of HALL, J.. U.C.A., 1953, 73-1-11.
. Ibid.