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<br />001086 <br /> <br />" <br />, <br /> <br />and confirmed to the oompany by deoree of oourt in the adjudication proceeding. <br /> <br />. <br /> <br />1. The oontention of the defendants in error is based upon the fol- <br />lowing provision in seotion 38 of Session Laws of 1879, page 106, appearing <br />in Compiled Laws of 1921 as seotion 1682: "Persons desirous to oonstruot and <br />maintain reservoirs, for the purpose of storing water, shall have the right to <br />take from any of the natural streams of the state and store away any unappro- <br />priated water not needed for immediate use for domestio or irrigating purposes." <br /> <br />Where a statute reasonably admits of tvto oonstruotions, one harmoniz- <br />ing the aot with the Constitution, the other bringing it into oonfliot the revri '. <br />or raising a reasonable doubt of the oonstitutionality of the act, the former <br />oonstruotion should be adopted by the oourt. <br /> <br />, . <br /> <br />The Territorial Legislature passed two aots to prevent waste of <br />water. The Aot of 1872, amending ohapter 45 of Revised Statutes of 1868, <br />made it unlawful to pennit more water to run in a ditoh than is neoessary, <br />and provided that when water is not needed for irrigating purposes it should <br />not be allowed to run in the ditch. The Act of 1876 (S. L., p. 78) made it <br />unlawful for any person to run through his irrigating ditch any greater quan- <br />tities of water than is absolutely necessary for irrigating his land and for <br />domestio and stook purposes. There are times, for instanoe in flood time, <br />when more water is available than is needed by the appropriators. With the <br />General Assembly of 1879, it is not unreasonable to suppose, intended by the <br />provision now under disoussion that an owner of a reservoir for irrigation <br />purposes shall have the right to take and store unappropriated waters, and <br />also waters that already have been appropriated by others but are not at the <br />time needed by suoh prior appropriators for immediate use for domestio or <br />irrigation purposes. Suoh storage would save the water from going to waste, <br />a most desirable objeot in this "dry and thirsty land," where every drop of <br />water is sorely needed. Suoh a oonstruction would save the statutory provi- <br />sion from coming into confliot with the Constitution, and I believe that suoh <br />oonstruotion is p ermiss ible. <br /> <br />. . <br /> <br />The trial oourt said: "The water offioials of the state have always <br />given force and effeot to the statute as meaning that a senior or any reservoir <br />appropriator for agrioultural purposes may not store water at a time when it <br />is needed for immediate use by a junior direot appropriator of water." <br /> <br />The oase Was deoided on demurrer to the alternative writ of mandamus, <br />and I find nothing in the reoord to sustain that statement of the trial oourt. <br />The attorneys are not in agreement as to the oonstruction given to the provi- <br />sion by the various water officials in past times, but it is admitted that <br />during at least four years (1897, 1898, 1913 and 1914) too state engineer's <br />rulings were not in harmony with the viElWs expressed by the trial judge. Tie <br />would not be justified in stating broadly, as a matter 01' whioh we oan take <br />judioial notice, that the praotioal oonstruotion by the water offioials has <br />been as stated by the trial oourt. Some of the officials have oonstrued the <br />provision, but, as we have seen, the oonstruotion has not been uniform. <br /> <br />, <br /> <br />2. If the provision now under oonsideration means what the defendants <br />in error say it does, it has been repealed by implioation by the Acts of 1881 <br />and 1887. <br /> <br />-6- <br />