dissenting:
T19 I respectfully disagree with the conclusion reached by my colleagues. I would affirm the trial court's ruling.
120 On the record before us, New Esca-lante Irrigation Company has been using the water source in contest for more than a century. Beginning in 1890, or earlier, and continuing until 2001, New Escalante's use of the water was open, peaceable, uninterrupted, and continuous. Not until 2001, with the filing of the present action by Otter Creek Reservoir Company and the other plaintiffs, was that use contested.
1 21 When New Escalante's predecessor in interest commenced use of the water, the law of the Utah territory allowed such a use to mature into a right to the water so used, so long as the use was open, peaceable, uninterrupted, and continuous. Compiled Laws of Utah § 2780, s.6 (1888). Upon statehood, the legislature enacted a statutory restriction on the acquisition of new water rights by adverse possession. 1897 Utah Laws 219. However, neither that statute nor any since enacted purported to extinguish existing water rights. Moreover, the right then held by New Escalante was not a right taken, by adverse possession or otherwise, from another water user. Consequently, restrictions to be imposed under the statutory scheme on newly acquired water rights were ineffective against existing rights.
22 The direct consequences on this dispute of the general water adjudication case that resulted in the Cox Decree have not as yet been presented for our review. However, on the theory that the Cox Decree cut off the New Escalante right, the trial court, and my colleagues, construct an analytical straw-man using the assumption that the use of the water at issue by New Escalante could only have begun after the Cox Decree, and that the time from the Cox Decree to the 1989 statutory prohibition on adversely acquired water rights is the critical focus of our analysis. It is here that I most differ with my colleagues.
123 On the facts before the trial court, New Escalante's use of the water at issue began prior to 1890, and was fully perfected. *1020The Cox Decree had no impact on the legitimacy of the New Escalante use. The presumption that legitimacy could only be achieved through an adverse use claim arising after the Cox Decree is mistaken. The New Escalante right was clearly established at the time, and continues to this day to enjoy enforceable legitimacy. I would therefore affirm the trial court's decision, but on the grounds that the century old right had been established and maintained by New Es-calante according to law prior to both the Cox Decree and the 1989 statutory change.