(dissenting).
I prefer to stand upon the decision of this court as originally announced.1 It affirmed the judgment of the trial court, which in turn upheld the action of the State Engineer in approving respondents’ application to construct a reservoir to store water adjudicated to it in the Cox Decree of 1936 and which they have owned and used ever since.
In considering respondents’ rights, these salient facts should be kept in mind: that the Cox Decree above referred to awarded them all of the flow of the Panguitch Creek for the entire year; that the waters of Panguitch Creek have for many years been cut off by ,a tight dam which has diverted the waters from the creek the year around: in the summer for irrigation and in the winter for flooding, stock watering and domestic purposes; that there is no direct return flow of the waters diverted from the creek either back into the creek or into the Sevier River (except in very unusual conditions of flooding) ; that the original application was to store 5,600 acre feet of winter water which was reduced to not to exceed 700 acre feet, that being the estimated amount that Panguitch Creek would make during the winter months, for the purpose of storing this water so that it could be used to a better purpose during the spring and summer months when it was needed to irrigate growing crops.
I fully appreciate the importance of preserving the established water rights of lower users and that caution should be taken not to permit upper users to encroach thereon. The latter are in a position of physical advantage so they may, if permitted to do so, whittle away the lower users’ rights to the extent of any such encroachment. However, it is equally important to keep in mind that the upper *12users also have rights which must be safeguarded. Our decisions dealing with disputes over rights to the use of viater are replete with statements about how important, and even precious, water is in this arid area, and that it is the policy of the law not only to permit, but to encourage the taking of any measures to develop, conserve, and put water resources to the best possible use and in the most economical manner feasible. That the appropriator of water should be allowed wide latitude in putting it to whatever use best suits his purpose is indicated in McNaughton v. Eaton, 121 Utah 394, 242 P.2d 570, at 574, “[he] * * * may sell or transfer the right to use of such waters * * * or * * * may recapture and use them for further beneficial use if he does so before they get beyond his property and control,” citing other of our decisions so holding.
It is so patent as to not admit of argument that no one should be compelled to use his water in a wasteful or inefficient way for the purpose of furnishing waste or seepage water for the benefit of others; and that no one can thus acquire rights to waste or seepage waters. See Eden Irr. Co. v. District Court, 61 Utah 103, 211 P. 957; Garns v. Rollins, 41 Utah 260, 125 P. 867; Big Cottonwood Tanner Ditch Co. v. Moyle, et al., 109 Utah 213, 174 P.2d 148, 172 A.L.R. 175.
Our prior decision advisedly indicated that the approval of respondents’ application could be sustained only because the State Engineer had discreetly placed these limitations thereon: that the change in the manner of the use of the waters could be made only if it did not impair existing rights of lower users; that no new land could be brought under cultivation; that plans and specifications so demonstrating had to be submitted to and approved by the State Engineer; and that measuring devices also had to be installed by respondents as required by the State Engineer. The judgment of the district court also expressly included those same restrictions. It seems to follow the general pattern suggested in the case of East Bench Irrigation Co.2
The judgment below and our former decision adequately assured against encroachments on the lower users’ rights. Under them the respondents as the moving parties would have the burden of showing by a preponderance of the evidence that they had met the foregoing conditions and that the proposed change could be made without impairing the vested rights of the lower users before they could build the proposed dam. In addition to safeguarding those rights it also allowed the respondents the opportunity of making better and .more efficient use of their waters if that could be done without infringing upon the rights of *13others. It seems to me that resolving this controversy upon that basis, which would recognize the rights of both disputants, would be more sound and salutary than doing so upon the foundation upon which this second opinion is based.
. See footnote 1 of main opinion.
. Cited in footnote 2 of main opinion.