(concurring with comments):
I concur with the main opinion; and I add some comments about matters which impress me as supporting its conclusion.
There are certain basic propositions to be kept in mind. The first is that the resolution of the dispute over the 2.52 cfs of water is to be found in the language of the Morse Decree. The second is that the water right dealt with in the Decree can be divided into two classifications; i.e., water used for culinary, domestic, and other purposes; and water used for irrigation. It is to be noted that paragraph No. 28 relied upon by the defendant is in effect a specific and unrestricted grant among the many individual grants in the Decree, while paragraph No. 124 relied upon by the plaintiff, is a generality intended to deal primarily with irrigation water.
If paragraph 28 is scrutinized carefully, it is seen as an adjudication (in effect a grant) of an unlimited year-around right to 2.52 cfs of water from the Provo River to defendants’ predecessor John D. Dixon. This is so because that paragraph plainly and simply adjudicates the right to that amount of water. It contains no characterization of the water thus granted as irrigation water, neither does it place any limitation upon its use. The pertinent part of that paragraph is underscored:
JOHN D. DIXON. From January 1st to December 31st.
As successor in interest to J. H. Snyder, Joshua J. Mecham, John W. Hoover, and Hyrum Heiselt to 2.80 second feet of water which was appropriated upon lands in Provo Canyon, the place of use and the point of diversion having been changed and the said water is now being used upon lands below the mouth of Provo Canyon, and the point of diversion from Provo River is now at and near the mouth of Provo Canyon, Utah County, Utah, and said use mav be continued and the quantity to which the said defendant is entitled at his said point of diversion, at and near the mouth of Provo Canyon, is 2,52 second feet: ...
The part of the Morse Decree relied upon by plaintiff, and which has been urged as casting doubt as to the effect of paragraph 28 as has been stated above, is found 96 paragraphs further on, in paragraph 124. The pertinent parts are underscored:
That all rights declared and decreed herein, for domestic and municipal uses and for the generation of power, are continuous throughout the year without limitation to time or season.
And that all the rights declared and decreed herein, for irrigation purposes, include the right to divert and use water for irrigation, culinary, domestic and agricultural purposes connected therewith. And such rights of diversion and use for culinary, and domestic purposes are continuous throughout the year, and are limited to the quantity reasonably necessary for said uses. And such rights of diversion and use for irrigation purposes is confined to the irrigation season of each year, and none of said parties shall divert or use any of said waters, (except for culinary and domestic purposes as herein-before provided), during the non-irrigating season — after the necessity for such use for irrigation purposes has ceased in the Autumn of each year and until it is necessary to use the same for irrigation purposes in the Spring of the year following.
It will be noted that the substance of the first paragraph of paragraph 124 just quoted is that all water rights for uses other than irrigation are continuous throughout the year; and that the remaining portion *1227thereof is dealing with water used for irrigation purposes. Though it is true that the second sentence of the latter paragraph states that waters used for culinary and domestic purposes are limited to the quantity reasonably necessary for those uses, the fair and reasonable import of the entire paragraph is that the restriction it states in confining the use of irrigation water to the irrigation season is intended to affect only irrigation water; and there is no basis therein for concluding that it was intended to restrict the right to use the water granted in paragraph 28, neither to reduce the amount, 2.52 cfs, permitted to be used, nor as to the time of year. Consequently, because the right decreed in paragraph 28 is neither restricted nor designated as being “for irrigation purposes” the limitations upon irrigation water as stated in paragraph 124 should not deprive defendants (predecessors) of the right to use up to the 2.52 cfs granted in paragraph 28.
What has been said above would seem to be sufficient to settle the controversy. But, if it is thought necessary to further fortify the soundness of the Court’s decision, there are two rules of construction which also tend to do so. The first is that if there is inconsistency, uncertainty or overlapping in the provisions of a document, language which deals more specifically with a subject matter takes precedence over general language. Thus, the express grant of water in paragraph 28, without limitation thereon, should take precedence over the general statement and the limitation on irrigation water stated in paragraph 124.
Even more important here is the rule that if there is inconsistency or doubt about the language used in a document, the practical construction placed on it, as shown by the actions of the parties, should be given consideration, and may be regarded as persuasive. The right awarded to John D. Dixon appears to have been honored on a year-round basis from the time of the Morse Decree in 1921 for a period of 46 years, until March 8, 1967, when the plaintiff first protested the defendant’s right to the use of the water.
When what has been said above is considered together with the sound propositions set forth in the main opinion: that once the ownership of water is shown (in defendant here) the burden is upon the attacker (plaintiff here), it seems sufficiently persuasive to me that the ownership and use of the 2.52 cfs feet of water as has been owned and used by Provo City for these many years should remain undisturbed.