(concurring in the result).
I concur in the result whereby the priority of appellants’ application No. 8989(a) over respondent’s application No. 9593 is restored, but I dissent from the reasoning of the majority opinion in achieving that result. I do so because the majority opinion can be construed as holding that the district court, when called upon to review any decision of the State Engineer, can, by entering an order to the effect that it retains jurisdiction, indefinitely stay the State Engineer from further action in an appropriation matter, thereby placing the court in the role of administrator instead of a court of review. I do not believe that •such was the legislative intent.
The majority opinion says that “we reverse both causes,” and thereby achieves the result of restoring the old order of priorities. I think we should sustain the judgment of the trial court in Case No. 10122, and modify the judgment of the trial court in Case No. 10123 in the manner hereinafter set forth. By doing so, I think we would achieve the right result, do equity to the parties, and would maintain the integrity of legal precedent, prior decisions and statutory procedures.
Respondent’s application No. 9593 was first filed in 1924 and since that time has benefitted by several extensions of time within which respondent was to file proof of appropriation of the water covered by the application. On August 10, 1959, the district court entered a decree affirming the decision of the State Engineer in granting respondent a further extension. This decree, affirmed by this court,1 resulted in an extension to July 22, 1962. By this decree the district court also made an order to the effect that jurisdiction of the matter would be retained during the extension period. On July 20, 1962, respondent filed another request, for a further extension of time. The request was filed with the State Engineer, and both causes now before this court arise out of that request. Appellants filed a protest to the request so filed.
After filing their protest with the State Engineer, but without waiting for a hearing on such protest, appellants commenced Case No. 10122 by filing an action in the *14district .court seeking a judgment declaring that application No. 9593 had lapsed for failure of respondent to file its request for extension with the district court instead of with the State Engineer. The appellants contended that since the district court had retained jurisdiction of the matter during the extension period ending July 22, 1962, the State Engineer had no further jurisdiction to act in the matter and thus could not receive the respondent’s request for extension of July 20, 1962. The district court ruled otherwise and appellants appealed from the judgment so entered. This appeal is now before us for review as Case No. 10122.
While Case No. 10122 was pending in the district court, the State Engineer held a hearing on respondent’s request for extension and appellants’ protest thereto. The State Engineer decided the controversy in respondent’s favor and granted respondent another extension of time to January 31, 1966, within which to file its proof of appropriation under its application No. 9593. Appellants then filed a second action in the district court for a plenary review 2 of that decision. In this second action appellants again challenged the jurisdiction of the State Engineer to grant the requested extension, and also asserted that in the proceedings before the State Engineer respondent had failed to make a proper showing of diligence cr reasonable cause for delay as required by the statute.3 Again the district court ruled otherwise and again appellants appealed from, the judgment so entered. This .second appeal is now before us for review as Case No. 10123.
Thus, both causes now before us evolve out of the jurisdictional controversy as to whether or not the State Engineer had jurisdiction to receive and grant respondent’s request for extension of July-20, 1962. Appellants here contend, as they did below, that since the district court had retained jurisdiction “of the matter” by its decree of August 10, 1959, the jurisdiction of the State Engineer to act in the matter was wholly terminated and had no force or effect. The majority opinion sustains that contention. In doing so this court, by reversing both causes (and particularly No. 10122 which raises only the jurisdictional issue) thus now rules that the distinct court erred in determining that the State Engineer had jurisdiction to act in the matter. If such be the case, i. e., if the State Engineer had no jurisdiction to act because of the retention of jurisdiction by the district court, then that conclusion by this *15court should he • determinative of 'both causes. This because, as appellants themselves point out, respondent’s application No. 9593 would have lapsed and died a statutory death, its priority as well as the application itself . would have ended on July 22, 1962, and the issues of diligence and reasonable cause for delay should not, and need not, he considered. These issues reach us only in Case No. 10123, and then only if it be concluded that the State Engineer had jurisdiction to act. If he did have jurisdiction to act, his decision in granting respondent the further extension of January 31, 1966, is then open to review by the. district court, and this court, in which case the district court considers the case de novó to determine whether the evidence establishes a proper showing of diligence or reasonable cause for delay to sustain the' further extension of time.4
I believe this court should sustain the judgment of the court below in No. 10122 because I believe the district court cannot and should not alter the statutory procedures set down by the' legislature for water appropriation.
Section 73-3-14 of our code provides for a plenary review in the district court in any case where a decision of the State Engineer is involved and any party is aggrieved by such decision. The Engineer’s decision in granting an extension of time for proof of appropriation is such a case. When such an action is filed, noticé of the pendency of such action must be filed by the clerk of the district court with the State Engineer. The filing of such notice “operate] to stay all further proceedings pending the decision of the district court.” (Section-73-3-14.) Within ten days after entry of the decision thus rendered, a copy of the judgment must be transmitted by the clerk of the district court to the State Engineer (Section 73-3-15).
When the district court entered its decree of August 10, 1959, the net result of which was to extend the time to July 22, 1962, within which respondent had to make proof of appropriation, or to file another extension request, that court had made the decision it was called upon to make under the statute — namely, reviewing the decision of the State Engineer in granting respondent the extension of time. By its decision the court in that case did not merely give the respondent until July 22, 1962, to prove its appropriation, or to show diligence, or to show reasonable excuse for further delay. It fixed a definite date terminating the period for which the extension was granted. The court also directed the respondent to form a conservancy district with taxing authority, which it did,. or to otherwise submit satisfactory evidence of its ability to proceed without the necessity of forming such taxing; authority.
*16■ If it be said that when the court “retained jurisdiction,” it deprived the State Engineer of any further jurisdiction in the matter, are we to assume that in such case any proof of appropriation, if made, must be thereafter made to the court? Section 73-3-12 states that “[a] 11 requests for extension of time must be by affidavit and must be filed in the office of the state engineer on or before the date fixed for filing proof of appropriation,” which proof, when filed, must be filed with the State Engineer on blanks furnished by him. (Section 73-3-16.)
In United States v. District Court of Fourth Judicial District, 121 Utah 1, 238 P.2d 1132, this court said:
The use of the terms “review” and “trial de novo” indicate that the court shall review only the issues of law and fact which were involved in the engineer’s decision. That is, whether the application shall be approved or rejected, and as a corollary thereto whether on all the evidence adduced at such trial de novo the enginer’s approval or rejection should be sustained, rejected or modified.
In Eardley v. Terry, 94 Utah 367, 77 P.2d 362, this court also said:
When an appeal is taken from the decision of the state engineer in such a case, the trial court is required to determine the same questions de novo. It determines whether the application should be approved or rejected and does not fix the rights of the parties beyond the determination of that matter. The issues remain the same upon an appeal to this court. All that the district court or this court, on appeal from the district court, is called upon to do is to determine whether the application should be rejected or approved.
Under these decisions I do not read into our statutory procedures any power in the district court to take over the duties and functions of the State Engineer. Our statutes afford no authority for keeping an open end on extensions of time and the district court decree of August 10, 1959, did not do so. What the district court in that decree intended to do under its retained jurisdiction is by no means clear to me, but at most I would say the requirements of the decree do afford a more specific basis for determining, in future statutory proceedings, whether diligence has been used in effecting appropriation of water to a beneficial use.
The majority opinion takes respondent to task for filing its request of July 20, 1962, for a further extension “without notice to the Carbon interests” and suggest^, that this made it impossible for the latter^ to file any kind of a pleading or protest *17with the State Engineer or the district court prior to the extension deadline. Such notice was neither required of an applicant nor fatal to action by the Carbon interests. Under the statute requests for extensions may be filed on the last .date fixed for filing proof of appropriation.5 Furthermore, the Carbon interests protested twice, once by filing suit to challenge the jurisdiction of the State Engineer to receive and act upon the request, which reaches us here as Case No. 10122, and once by filing suit to review the decision of the State Engineer in granting such extension, which reaches us here as Case No. 10123. We should rejoice that further opportunities for protest were not open to appellants.
As to Case No. 10123 and the issues of whether there has been a proper showing of diligence or reasonable cause for further delay to justify the latest extension by the State Engineer, I think, as already noted, that the judgment of the court below should be modified rather than reversed. The decree below protects the continued life of application No. 9593 and we should leave no doubt about doing so here. It appears to me that at least as of July 22, I960,6 it must be recognized that respondent’s many extensions of time for filing proof of appropriation were, up to that time, based upon what was considered to be a proper showing of diligence or reasonable cause for delay. However, respondent’s application No. 9593, which was for 15,000 acre feet of water in Gooseberry Creek for storage in a reservoir, was filed in 1924 and contemplated the construction of a dam and a tunnel to carry water into Sanpete County. Forty-two years later the record reflects: no dam, no tunnel, extension after extension, and years of litigation. We still lack any clear showing that there is unappropriated water in the proposed source; or that the proposed plan is physically and economically feasible; or that the applicant has the financial ability to complete the proposed works, as required under the statute.7 Then too, I think the real import of Judge Jones’ decree of August 10, 1959, was that the Sanpete Water Users Association should either fish or cut bait.
In United States v. District Court of Fourth Judicial District, supra, this court noted that under certain circumstances the State Engineer’s approval of an application may be made “expressly subject to the rights under other applications which are filed later.” Furthermore, Section 73-3-12 of our code provides in part as follows:
*18The state engineer,’ in acting upon requests for extension of time, may, if he finds unjustified delay or lack of diligence in prosecuting the works to completion, deny the same or may grant the' request in full or in part or upon conditions, including a reduction of the priority of all or part of the application.
In water appropriation matters there is a statutory mandate that an applicant shall diligently prosecute to completion the construction of works and the application o.f water to beneficial use.8
Thus, I would modify the district court decree in Case No. 10123 and approve respondent’s. latest application for an extension of time “upon conditions” — those conditions being that respondent’s priority be brought down to the 1939 date when the district court, after IS years of delay, reversed the State Engineer and approved respondent’s 1924 application. This would make it subsequent to the priority date of October 11, 1937, now held by appellants’ application No. 8989(a), which I believe is an equitable and just result under all of the facts and circumstances. With the old priorities thus restored, perhaps it would not be too much to hope that new attitudes between the parties may now be established.
. Carbon Canal Co. v. Sanpete Water Users Assn., 10 Utah 2d 376, 353 P.2d 916.
. Section 73-3-14, U.C.A.1953, authorizes such review by the district court. Any - person aggrieved by a decision of the State Engineer may have it reviewed in a civil action.
. Section 73-3-12, U.C.A. 1953, as amended, provides that the State Engineer may grant extensions of time on proper showing of diligence or reasonable cause for delay.
. Sections 73-3-2, 14, U.C.A. 1953.
. Section 73-3-12, U.C.A.1953, as amended.
. The date of the remittitur by which the district court decree of August 10, 1953, was affirmed by this court.
.Section 73-3-8, U.C.A.1953, as amended.
. Section 73-3-12, U.C.A.1953, as amended.