I dissent. I think we should have a rehearing in order that we may determine whether title to a water right may be obtained against any one by adverse possession. If A. has a water right which he had exercised by taking his water *Page 41 through a ditch from the stream and B. on the ditch above him uses all of this water for five years, if may be an abandonment by A. But it takes seven years for B. to obtain title by adverse possession, and then he would obtain it in a negative way by having a good defense against the real title holder. But who is the title holder during this last two years? If abandoned, it reverts to the public. Can B. obtain the adverse possession against the public? Certainly if, instead of diverting from A.'s ditch what formerly was A.'s water, he took it from the stream himself for those two years, he could not claim adverse possession against A. He could hardly claim adverse possession against any of the other water users on the stream. If before A. abandoned his water there was not enough water to satisfy the rights of other users subsequent in right to A., could B. claim as against all these users the water abandoned by A. which would feed the rights of these users? Can there by any difference in the nature of the right it is claimed B. obtained if he took water through A.'s ditch as distinguished from taking it from the stream? I can hardly see how B. obtains a right against A. who no longer had title after the five years in which A. failed to use the water. Or, put another way, if he obtained an adverse right against A., he obtained it equally against all appropriators who rights came subsequent to A. But this appears to be contrary to the case of Deseret Live Stock Co. v. Hooppiania, 66 Utah 25,239 P. 479; Glover v. Utah Oil Refining Co., 62 Utah 174,218 P. 955, 31 A.L.R. 900.
Moreover, on principle, I have doubts whether a person can obtain adverse possession of a right as distinguished from lands. The right to use water is a right only to the use of water, and that water becomes the property of the appropriator only when it is reduced to possession. I may obtain title by adverse possession of land which I can adversely occupy and possess, but how can I adversely possess a right? If a life tenant, as against the remainder man, has a right to cut cordwood for fuel from the woodlands, can some one *Page 42 having no relation to the remainderman and no consent of the life tenant obtain the life tenant's right by taking the cordwood? Or, better still, is an illustration where one has a right to pasture his cows in the commons. May some outsider by pasturing his cattle there illegally obtain the right of the other to pasture by a so-called adverse user or possession? May one who is using water which another has the right to use from the common source of water, like from the common source of pasture, obtain adverse possession of the other's right to use water? Water, for purposes of recording and transfer, is considered as real estate, but does that mean it has all the attributes of real estate? Can any one occupy or possess fugitive water? Certainly, the law cannot give the same physical properties to running water as real estate possesses. I am concerned about these conceptions. Can one by purporting to use something another has the right to use gain title by so-called adverse user rather than by adverse possession? If so, can this be done when the failure on the part of the one legally entitled to use the water, works an abandonment and a reversion to the common source of the water, when title to the water in the common source is in the public or feeds rights of subsequent appropriators. The law specifies no right may be obtained therein except by appropriation, which is obtained after the culmination of certain prescribed steps.
I vote for a rehearing in order that we may obtain argument on these matters.