(concurring in the result):
I concur in the result.
As Justice Crockett points out in his opinion, it is not clear that § 28 of the Morse Decree made the Dixon right an irrigation right. It is not so designated and there is no language in § 28 to indicate that the 2.52 c.f.s. of water was to be used for irrigating lands. It is interesting to compare the wording of § 28 with the preceding § 27 where in many instances the water decreed is specified to be used for the irrigation of a certain number of acres of land. No such reference appears in § 28. It is neither specified that it is for irrigation purposes nor are the lands upon which the water is to be applied identified.
This Court in Tanner v. Humphreys, 87 Utah 164, 48 P.2d 484 (1935) treated the Dixon right as an irrigation right as had the State Engineer and the district court, but whether it was or was not such a right was not an issue in that case. However, if we concede that the Dixon right was an irrigation right and that § 124 must be read in connection with § 28, then it becomes necessary to analyze § 124. Respondents base their argument on the contents of the fourth paragraph which contains five sentences. Those sentences may be summarized as follows:
1. The right to divert and use water for irrigation purposes is confined to the irrigation season and no one shall divert or use water after the irrigation season, except for culinary and domestic use.
2. Included in an irrigation right is the right to divert and use water for irrigation, culinary, domestic and agriculture purposes connected therewith.
3. Such right of diversion and use for culinary and domestic purposes are continuous throughout the year, but limited as to *1228the quantity reasonably necessary for such uses.
4. The River Commissioner shall enforce the provisions of this paragraph, particularly with respect to the quantity of water diverted during non-irrigation season whenever such diversion will interfere with the use of water by parties who have been awarded water for the generation of power.
5. If the Commissioner imposes rules and regulations which aggrieve any user, he, his heirs, executors, administrators, successors and assigns may apply to the court and the court will review the Commissioner’s actions and give an order of direction.
There is nothing in § 124 which directs, contemplates or even suggests, that any user would ever have to return to court to prove the quantity of culinary or domestic water he was entitled to use. Nor is there any hint in the language of § 124 that a user would always be limited to that quantity of culinary water he was using on the date the Morse Decree was entered. We did not fix that date or any other date as a base date in Tanner v. Humphreys, supra. Since one of the objections to the change application requested in that case was that the use would be enlarged, this Court stated that it might be “necessary for the [trial] court to take evidence on the question of what amount of water would be reasonably required during the non-irrigable season for culinary and domestic purposes, and so condition the decree as to permit only that amount to be taken from the tributaries during such non-irrigation season.” The implication in that language is that the base for measuring any increase in use would be the current year, not the May 1921 use. Thus I conclude that while the user is limited to such quantity as is reasonable for his needs on his premises, that amount could well differ from month-to-month and year-to-year as people moved on and off the premises, and as the number of head of livestock kept there changed. The amount could not, of course, exceed 2.52 c.f.s. which was granted.
The language of § 124 contemplates that a user return to court only if the commissioner imposed some restriction on his use, with which the owner disagreed and he desired the court to review it. Nothing in § 124, or in any other part of the decree, directed or contemplated that the hundreds of users on the river would have to return to court some day to prove their actual use of culinary water in May 1921. I refer to § 134 of the decree which provided that the court would retain jurisdiction for the following purposes: (a) to make corrections for clerical errors, but only for 60 days; (b) to determine and fix the quantity of losses by evaporation and seepage; (c) to determine and fix payments and assessments to be borne by the parties; (d) to appoint commissioners and fix their compensation. Then it was stated, “In all other respects the decree shall be final.”
Thus I conclude that the main purpose of § 124 was to prevent the wasting of water and to ensure that there was always enough flow in the river to satisfy power generation needs.
It follows from what I have said that the trial court’s determination that the burden rested with Provo City and Hamblin to prove their May 1921 culinary use was erroneous. Their culinary use at that time does not forever fix their right. In view of that fact, it was also erroneous because, as pointed out in the main opinion, nowhere in the water jurisprudence of this state does the owner of a water right bear the burden of being able at all times to prove that he is using all the water which has been decreed to him. The burden has always been on the person who claims that an owner of a water right was not beneficially using all his water to establish that fact. There is nothing in our opinion in Tanner v. Humphreys, supra, which dictates otherwise. It did not hold that the user would have to return to court and bear the burden of proving his May 1921 culinary use. It simply held that when an application is filed to permit a change in the point of diversion and nature of use, the applicant must make a prima facie showing that the required change will not impair vested rights of others. But the opinion recognized that this involved proving a negative and stated, “It would be impractical to require the plaintiff to ferret out all of the ways in which the others *1229might perchance be injured, and offer proof in negation thereof as a part of its affirmative case. The general negative as against injury to the protestants is sufficient to carry the case over a motion for a nonsuit in that respect.”
CROCKETT, J., Retired, concurs in the opinion of HOWE, J.