(dissenting):
I would affirm the decision of the trial court.
Provo City’s predecessor in interest, Esth-ma Tanner, had the right to 2.52 efs of water during the irrigation season (May to October) and the right to use the amount of water necessary for domestic and culinary purposes during the rest of the year. Contrary to the majority opinion, the rights of Provo City were adjudicated in Tanner v. Humphreys, 87 Utah 164, 48 P.2d 484 (1935); that ruling should be determinative in this case. This Court in Tanner construed the Morse Decree and expressly held that Esthma Tanner, who had succeeded to the so-called Dixon right under the Morse Decree, had the right to 2.52 cfs of water during the irrigation season only. The Court’s holding today that Tanner owned that right for the entire year is not reconcilable with the adjudication in Tanner.
The Court further held in Tanner that Esthma Tanner had the burden under the decree of proving the amount that was “reasonably required for domestic and culinary purposes” during the nonirrigation season. In Tanner, the Court stated:
We believe that the [trial] court and the respondent [Esthma Tanner] are both correct in their interpretation of the decree that by paragraph 124 of the said decree the plaintiff was only entitled to water up to 2.52 second feet for irrigation purposes and in the nonirrigation season only so much thereof as was reasonably required for domestic and culinary purposes on the premises where the irrigation water was used. But this matter could also have been taken care of in the decree. It might have been necessary for the court to take evidence on the question of what amount of water would be reasonably required during the nonirrigable 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 nonirri-gation season. We think that all that the plaintiff asked and all that she could get was an exchange of the waters which she had under her right, but that as far as the complaint and evidence were concerned up to the point of the motion for a nonsuit, she was entitled to a decree giving her that right, the court to supplement with a hearing on the amount reasonably necessary for domestic purposes. Thus interpreted, it disposes of the contention that the plaintiff was in effect seeking to appropriate additional water. [48 P.2d at 488.]
Insofar as the record discloses, neither Esthma Tanner nor her successors, including Provo City, has ever established the amount of water to which Tanner was entitled during the nonirrigation season.