WADE, Justice.
Plaintiff, Provo City, brings this action against the defendants, about forty individuals, to acquire certain lands near the shore of Utah Lake and Provo Bay for a municipal airport. Plaintiff alleges that the state of Utah claims to own said lands which it has leased to plaintiff; that defendants are in possession thereof and claim some right, title and interest thereto and ask that such interest be adjudicated and that such interest, if any, be condemned and plaintiff acquire the same by eminent domain. Utah lake is navigable. The lands in question are bounded on the
west and south by the waters of that lake and Provo Bay and are between the meander line as established in 1856 and the waters of the lake as at present located. The state of Utah intervened, claiming to own such lands on the grounds that on January 4, 1896, when it became a state it acquired title thereby to such lands because at that time they were a part of the bed of the lake. Various defendants answered claiming ownership to various parts of the lands in question and all of the lands in question to a certain line were claimed by one or other of the answering defendants. Defendants claim as successors in interest of persons who received patents, prior to statehood, from the United States to part sections of lands contiguous to and bounded by the lake, the surveyed parts of which lands run from the meander line to the north and east. They claim ownership either by reason of the patents or as riparian owners as the lake receded to the lands formed by reliction or accretion. The defendants are now, and their predecessors in interest have been, in possession of the lands which they respectively claim during all of the time since the patents were issued or since the said lands were uncovered by the waters of the lake. The lands in question slope very gradually toward the water of the lake, and a very slight raise in the elevation of the water causes a large area of land to be thereby covered.
The court found that
“from 1884 to 1895, inclusive, excepting the year 1889, * * * water from Utah lake would periodically cover the property”
involved in this action;
“that on January 4, 1896 the water level of Utah lake * * * was below compromise elevation.”
[This elevation was stipulated to be 4488.95 feet above sea level. It was established in 1885 by a commission appointed for that purpose by an agreement between the riparian owners on the shore of Utah Lake and the water
users from the Jordan River at certain monuments designated at various places on the lake shore as the elevation to which the lake waters could be raised.]
“There was no competent evidence offered or received upon which the court can find the high water mark on the lands”
herein involved
“on January 4th, 1896, or at any time prior thereto, except evidence of an old shore line running in a general northerly and southerly direction from the old Provo Resort to Will Peay’s cabin. * * *.”
The lands here involved are above this old shore line. The trial court entered judgment in favor of the defendants and against the plaintiff and the state that the defendants are the owners of the parcels of land which they respectively claim. The state contends that the findings and judgment are contrary to law and the preponderance of the evidence. If this is an equity case we must pass on both the law and the facts. So we have examined the evidence to determine where the preponderance is and given due consideration to the opinion of the trial judge who heard the evidence and saw the witnesses.
The state contends that the title to the bed of the lake as it was at the time Utah became a state thereupon became vested in the state; that the high water mark as it was at that time was the boundary line between the property of the state and the riparian owners of the lands bordering on the lake. It further contends that proof of the establishment of the meander line in 1856 was sufficient to make a prima facie case; that the meander line was on the high water mark at that time, and in the absence of a showing of a high water mark at a different place at the time of statehood, the court must presume that it remained at the meander line. The state further contends that no new high water line has been established by the defendants but the state has shown by graphs and charts the levels of the waters of the lake during all the time from the beginning
of 1884 until after Utah became a state. It contends that the average of the highest levels which the water reached each year for all the years during which records were kept prior to statehood is the high water mark. Figured on this basis, the high water mark would be 1.48 feet above compromise elevation.
The state concedes that the meander line is not necessarily the boundary line.
Knudsen
v.
Omansen,
10 Utah 124, 137 P. 350;
State
v.
Rolio,
71 Utah 91, 262 P. 987;
Shively
v.
Bowlby,
152 U. S. 1, 31, 14 S. Ct. 548, 38 L. Ed. 331. There are cases which indicate that in the absence of 2 evidence to the contrary the meander line as established represents the high water mark and is therefore the boundary line.
State
v.
Imlah,
135 Or. 66, 294 P. 1046. Here there was much evidence both on the part of the state and the defendants as to the levels of the water during the period from 1884 to the time Utah became a state and as to the times when and how much of this land was covered during the various parts of that period, and as to the condition of this ground during that time. In view of this fact, we are not called upon to assume any fact but must determine what the preponderance of the evidence is. Since the state is asserting ownership to this land, it has the burden of proving by a preponderance of all of the evidence where the high water mark was at the time Utah became a state.
The state’s evidence showing the highest point the water reached in each year from 1884 to the time Utah became a state does not prove where the high water mark was at that time. The trial court apparently believed that the waters of the lake were at the high levels shown , by the graphs because it found that the water periodically covered this land from 1884 to 1895, inclusive, excepting the year of 1889, and we are convinced that such finding is supported by a preponderance of the evidence, but the high water mark is not determined by an average over a period of years of the highest levels which the water reached each year.
Willis
v.
United States,
D. C., 50 F. Supp. 99;
Merill
v.
Board,
146 Iowa 325, 125 N. W. 222. The
term “high water mark” means what that term indicates— a mark on the land impressed by the water upon the soil by covering it for sufficient length of time so that it is deprived of vegetation and its value for agricultural purposes destroyed. See two cases just cited and Gould, Law of Water, 3rd Ed., Sec. 45;
Raide
v.
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WADE, Justice.
Plaintiff, Provo City, brings this action against the defendants, about forty individuals, to acquire certain lands near the shore of Utah Lake and Provo Bay for a municipal airport. Plaintiff alleges that the state of Utah claims to own said lands which it has leased to plaintiff; that defendants are in possession thereof and claim some right, title and interest thereto and ask that such interest be adjudicated and that such interest, if any, be condemned and plaintiff acquire the same by eminent domain. Utah lake is navigable. The lands in question are bounded on the
west and south by the waters of that lake and Provo Bay and are between the meander line as established in 1856 and the waters of the lake as at present located. The state of Utah intervened, claiming to own such lands on the grounds that on January 4, 1896, when it became a state it acquired title thereby to such lands because at that time they were a part of the bed of the lake. Various defendants answered claiming ownership to various parts of the lands in question and all of the lands in question to a certain line were claimed by one or other of the answering defendants. Defendants claim as successors in interest of persons who received patents, prior to statehood, from the United States to part sections of lands contiguous to and bounded by the lake, the surveyed parts of which lands run from the meander line to the north and east. They claim ownership either by reason of the patents or as riparian owners as the lake receded to the lands formed by reliction or accretion. The defendants are now, and their predecessors in interest have been, in possession of the lands which they respectively claim during all of the time since the patents were issued or since the said lands were uncovered by the waters of the lake. The lands in question slope very gradually toward the water of the lake, and a very slight raise in the elevation of the water causes a large area of land to be thereby covered.
The court found that
“from 1884 to 1895, inclusive, excepting the year 1889, * * * water from Utah lake would periodically cover the property”
involved in this action;
“that on January 4, 1896 the water level of Utah lake * * * was below compromise elevation.”
[This elevation was stipulated to be 4488.95 feet above sea level. It was established in 1885 by a commission appointed for that purpose by an agreement between the riparian owners on the shore of Utah Lake and the water
users from the Jordan River at certain monuments designated at various places on the lake shore as the elevation to which the lake waters could be raised.]
“There was no competent evidence offered or received upon which the court can find the high water mark on the lands”
herein involved
“on January 4th, 1896, or at any time prior thereto, except evidence of an old shore line running in a general northerly and southerly direction from the old Provo Resort to Will Peay’s cabin. * * *.”
The lands here involved are above this old shore line. The trial court entered judgment in favor of the defendants and against the plaintiff and the state that the defendants are the owners of the parcels of land which they respectively claim. The state contends that the findings and judgment are contrary to law and the preponderance of the evidence. If this is an equity case we must pass on both the law and the facts. So we have examined the evidence to determine where the preponderance is and given due consideration to the opinion of the trial judge who heard the evidence and saw the witnesses.
The state contends that the title to the bed of the lake as it was at the time Utah became a state thereupon became vested in the state; that the high water mark as it was at that time was the boundary line between the property of the state and the riparian owners of the lands bordering on the lake. It further contends that proof of the establishment of the meander line in 1856 was sufficient to make a prima facie case; that the meander line was on the high water mark at that time, and in the absence of a showing of a high water mark at a different place at the time of statehood, the court must presume that it remained at the meander line. The state further contends that no new high water line has been established by the defendants but the state has shown by graphs and charts the levels of the waters of the lake during all the time from the beginning
of 1884 until after Utah became a state. It contends that the average of the highest levels which the water reached each year for all the years during which records were kept prior to statehood is the high water mark. Figured on this basis, the high water mark would be 1.48 feet above compromise elevation.
The state concedes that the meander line is not necessarily the boundary line.
Knudsen
v.
Omansen,
10 Utah 124, 137 P. 350;
State
v.
Rolio,
71 Utah 91, 262 P. 987;
Shively
v.
Bowlby,
152 U. S. 1, 31, 14 S. Ct. 548, 38 L. Ed. 331. There are cases which indicate that in the absence of 2 evidence to the contrary the meander line as established represents the high water mark and is therefore the boundary line.
State
v.
Imlah,
135 Or. 66, 294 P. 1046. Here there was much evidence both on the part of the state and the defendants as to the levels of the water during the period from 1884 to the time Utah became a state and as to the times when and how much of this land was covered during the various parts of that period, and as to the condition of this ground during that time. In view of this fact, we are not called upon to assume any fact but must determine what the preponderance of the evidence is. Since the state is asserting ownership to this land, it has the burden of proving by a preponderance of all of the evidence where the high water mark was at the time Utah became a state.
The state’s evidence showing the highest point the water reached in each year from 1884 to the time Utah became a state does not prove where the high water mark was at that time. The trial court apparently believed that the waters of the lake were at the high levels shown , by the graphs because it found that the water periodically covered this land from 1884 to 1895, inclusive, excepting the year of 1889, and we are convinced that such finding is supported by a preponderance of the evidence, but the high water mark is not determined by an average over a period of years of the highest levels which the water reached each year.
Willis
v.
United States,
D. C., 50 F. Supp. 99;
Merill
v.
Board,
146 Iowa 325, 125 N. W. 222. The
term “high water mark” means what that term indicates— a mark on the land impressed by the water upon the soil by covering it for sufficient length of time so that it is deprived of vegetation and its value for agricultural purposes destroyed. See two cases just cited and Gould, Law of Water, 3rd Ed., Sec. 45;
Raide
v.
Dollar,
34 Idaho 682, 203 P. 469;
City of Tulsa
v.
Peacock,
181 Okl. 383, 74 P. 2d 359;
State ex rel.
v.
Sorenson et al.,
222 Iowa 1248, 271 N. W. 234;
State
v.
Longfellow,
169 Mo. 109, 69 S. W. 374;
State ex rel. Thompson
v.
Parker,
132 Ark. 316, 200 S. W. 1014;
Anderson
v.
Reames,
204 Ark. 216, 161 S. W. 2d 957;
Diana Shooting Club
v.
Rusting,
156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148;
Union Sand & Gravel Co. v. Northcott,
102 W. Va. 519, 135 S. E. 589;
Tilden
v.
Smith,
94 Fla. 502, 113 So. 708;
Carpenter
v.
Board of Commissioners,
56 Minn. 513, 58 N. W. 295, 45 Am. St. Rep. 494;
Sun Dial Ranch Co.
v.
May Land Co.,
61 Or. 205, 119 P. 758, 759;
Austin
v.
City of Bellingham,
69 Wash. 677, 126 P. 59.
The cases cited by the state do not support its contention. For the most part they are cases involving tidal waters where the season to season change in the water level is not great but the change from one tide to another occurs several times daily. In such case, the problem is entirely different from the case where there is a great fluxation from the wet to the dry season of the year.
The cases of
State
v.
Imlah,
135 Or. 66, 294 P. 1046, 1048, and
Johnson
v.
Knott,
13 Or. 308, 318, 10 P. 418, quoted from in the state’s brief, do not involve tidal waters and each define the high water mark as
“the point to which the water usually rises in an ordinary season of high water.”
In
State
v.
Imlah,
the reference is merely incidental. It cites the
Johnson
v.
Knott
case repeating the definition therefrom and no further definition of the term is made. The term
“usually rises in an ordinary season of high water”
without further clarification is very uncertain in its meaning. The case of
Johnson
v.
Knott
[13 Or. 308, 318, 10 P. 420] was a jury case involving only the question of where was the high water mark. In defining that mark, the court used the words above quoted and added:
“This line is easily observed by an examination of the banks of the river long after the water subsides, and an intelligent jury, when permitted to view the locality, will have no difficulty in detecting it,”
which clearly indicates that the court had in mind a mark left on the soil by the water rather than an average, of the extreme yearly high levels reached over a period of years.
If the state is correct in its contention that it owns the bed of the lake to the high water mark, we must determine where that mark was at the time of statehood. On this question the court found:
“There was no competent evidence * * * upon which the court can find the high water mark upon the lands * * * on January 4th, 1896, or at any time prior thereto, except evidence of an old shore line running in a general northerly and southerly direction from the old Provo Resort to Will Peay’s cabin.”
This is a finding that there was no evidence of facts favorable to the state and not a direct finding of the fact of where the high water mark was. In
Robinson
v.
Thomas, 75
Utah 446, 286 P. 625, 626, we said of a similar finding:
“The plaintiff had the burden of proving such issue. If he failed to do so, a finding with respect thereto ought to have been made against him.”
In that case the court treated such finding as a finding of the fact against the plaintiff. Treating this as a finding that the high water mark was at the time of statehood at the old shore line running from the old Provo Resort to Will Peay’s cabin, since the evidence discloses that this line was west of the lands in question, if such finding is supported by a preponderance of the evidence, the decision of the trial court must be affirmed.
Such a finding is in accord with the great weight of the evidence. Many witnesses testified that at the time Utah became a state and prior thereto, trees, grass and other vegetation grew thereon, cattle were pastured there and part of it was under cultivation. In addition thereto there was undisputable evidence that about 1887 the old Provo Resort was built near the northwest corner of these lands and a railroad built to this resort; that trees and grass were planted and grew around the resort from the time it was built until after the time of statehood; that Will Peay built his cabin near the southwest corner of these lands in 1892 and lived there during the summer months for several years thereafter; that artesian wells were drilled both at the resort and near the cabin. These facts point unmistakably to the fact that this land was not made useless for agricultural purposes even though the high water did for a short period most years cover the land, and they support by a preponderance of the evidence the finding that these lands were above the high water mark.
The state having failed to prove that these lands were below the high water mark of the lake at the time Utah became a state, it cannot succeed under any theory of the law in regard to such lands and it is unnecessary for us to decide any of the many other questions argued by the various counsel in their briefs. The judgment of the district court is affirmed. Costs against plaintiff.
McDONOUGH and WOLFE, JJ., concur.