McCARTY, 0. J.
Oil July 19, 1901, a decree was entered in the district -court of Salt Lake County in an action brought to quiet the title to the waters of the Jordan River. That decree, among -other things, provides that “the persons and corporations, parties to this suit, shall respectively construct or cause to be constructed at their own cost, and under the direction and supervision of the commissioner appointed by the court, proper appliances for the correct measurement of the waters .awarded to them respectively, and thereafter shall maintain -and keep in place dams, headgates, flumes, canals, penstocks, and other means by which said water is diverted, conveyed, •or used in a good state of repair, together with appliances for the measurement of such water, to the end that no unnecessary loss from seepage or leakage shall occur, and that the water shall be economically applied to the uses for which it is awarded.” The decree further provides that the court .shall retain “original jurisdiction in this case and the subject-matter thereof and of the parties thereto . . . for the purpose of all necessary supplementary orders and decrees which may be required to make effectual the rights awarded and preserved by this decree.” The decree also provides that, “for the purpose of carrying into effect this decree according to its true intent and purpose, J. Lews on Smith, Jr., is hereby appointed as a commissioner ... to superintend and direct the measurement and division of all the water distributed by this decree in accordance therewith, to direct, supervise, and inspect all means and appliances for the diversion, conveyance, and use of the same, and to report from time to time to the court any violation of the provisions of this decree.” The case was appealed to this court, and the decree affirmed. 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 648.
In the year 1892 the Utah & Salt Lake Canal Company, the East Jordan Irrigation Company, and the South Jordan Uanal Company constructed a dam across the head of the Jordan River, the outlet of Utah Lake, for the purpose of .holding back the flow of the waters of the lake, and regulat[596]*596ing the volume of discharge therof, and hi connection therewith installed a pumping plant at the point where the lake-empties into the Jordan River. ‘This pumping plant consisted of four pumps, each of which was and is capable of pumping one hundred cubic feet of water per second of time. The commissioner, during the latter part of the year 1901, made certain improvements at the impounding dam of the Jordan River, and installed a weir at a point in the river near the-power plant in what is known as the Jordan Narrows, and on the 13th day of January, 1902, by consent of all the parties,, the court made a supplemental decree affirming the report of the commissioner relating to such improvements, and -assessed the costs thereof in different amounts against each of the parties to the original decree. In the year 1902, Salt Lake City acquired a one-fourth interest in the pumps mentioned and the lands upon which they -are located. In January, 1904, a contract was entered into between Salt Lake City, South Jordan Canal Company, East Jordan Irrigation Company, Utah & Salt Lake Canal Company, and the North Jordan Irrigation Company, all parties to this proceeding, by the terms of which the North Jordan Irrigation Company became the owner of a one-fifth interest in the pumping plant and the lands upon which it is situated and adjacent thereto. That contract, among other things, provided that:
“It is hereby expressly understood and agreed by the parties to this contract that from this day (January 26, 1904) the parties hereto are to be co-owners each of an undivided one-fifth interest in said pumping plant. Nothing in this contract contained shall in any manner bind any party hereto to any specific expenditure in the future in relation to said pumping plant save only the cost of maintenance and operation at its present capacity without the consent of said party. It is expressly further understood and agreed between the-parties hereto that this contract or instrument is made solely with reference to the pumping plant and property connected therewith as hereinbefore described, and is not intended and shall not be construed to in any way alter, change, or modify [597]*597the existing water rights or privileges of the parties hereto.” The pumping plant referred to was enlarged from time to time by the installation of additional pumps to meet the requirements and demands of Salt lake City and the irrigation companies mentioned for an increased supply of water, and supplemental decrees were made and entered by the court to meet the changed conditions, and for the carrying into effect of the provisions of the original decree under such changed conditions.
The relative locations of the respective points of diversion of the waters of Jordan River by the several canal companies are, approximately, as follows: Ten miles from the source of the Jordan River is the intake of the East Jordan Irrigation Company. At the same point, and on the other side of the stream, is the intake of the Utah & Salt Lake Canal Company and the Telluride Power Company, hereinafter referred to as the Power Company. A mile farther down the river is the joint intake of Salt Lake City and the South Jordan Canal Company. A mile below the latter location is the power plant of the Power Company, at which place the waters utilized by it are required to be returned to the stream or canals. Eight miles below the last'location is the intake of the Gardner Mill Race.
On November 17, 1910, the following motion was filed in the cause by the Utah & Salt Lake Canal Company:
“Comes now the Utah & Salt Lake Canal Company, and respectfully represents to the court that it is advised by J. Fewson Smith, Jr., the commissioner of this court, that' certain improvements are necessary in the Jordan River in order that the waters thereof, to which the respective parties to this action are entitled, may be properly and economically distributed. Wherefore, the said Utah & Salt Lake Canal Company moves the court that an order of this court issue directed to J. Fewson Smith, Jr., the said commissioner, and to each and all the parties to appear before this court, at a time fixed in said order, and that then a hearing be had, and that at the conclusion thereof the character of such improvements necessary, if any, be determined, fixed, and es-[598]*598tablisbed by order of this court, and that the proportionate part of the expenses of such improvements to be paid by each ■of the parties to this action be fixed and determined, and that a proper order be made as to the manner, and form, and time of payment thereof.”
No petition or pleading other than the foregoing motion was presented to the court or filed in the cause to invoke the action of the court in regard to the subject-matter of the motion. On January 10, 1911, the matter came on for heart-ing, and counsel for the East Jordan Irrigation Company interposed an objection to the taking of testimony, which, so far as material here, was as follows:
“The East Jordan Irrigation Company desires to interpose a formal objection on the ground there is no issue before the court upon which testimony may be taken; upon the further ground there is no pleading in the case, original or otherwise, which justifies the proposed procedure.”
The objection was overruled, and evidence was introduced •showing the necessity of repairing the dams, weirs, and devices used in distributing the waters of Jordan Elver, and of making additional improvements to enable the commissioner theretofore appointed by the court to efficiently and equitably distribute the waters to the several irrigation companies and others entitled thereto. Before the taking of testimony was concluded, the court, with the approval of the parties to this appeal, temporarily suspended the proceedings, and appointed J. Eewson Smith, Jr., the commissioner, and two other civil engineers, namely, A. F. Doremus and Willard Cannon, as a board of engineers to personally ■examine the dams, weirs, and devices then installed, and to make such recommendations regarding the improvement of the system as they might deem necessary for the proper and equitable distribution of the waters mentioned. On June 8, 1911, the engineers filed their report, in which they recommended the making of improvements, such as dams, head-gates, and measuring devices, such as they deemed necessary for the distribution of the waters. The report recited, and the evidence showed, that:
[599]*599: “The devices now employed -for measuring and diverting tbe water are old, inaccurate, and generally dilapidated contrivances that involve much labor and considerable risk in their operation. In most cases the measuring devices are situated from one to three miles below the head of the channel for which they are used to measure the.water. This compels many miles of unnecessary travel between head of ditch and measuring device in order to determine and apportion the allotted flow.”
After making those observations, the engineers specify and point out in their report what, in their judgment, would be proper devices, such as dams, weirs, and headgates, for measuring the waters, and distributing the same to the parties entitled thereto, and recommend that such devices be installed in and along the Jordan River at the intakes of the several canals diverting water therefrom as a “means (2) for accurately measuring the common water supply, (3) for equalizing and regulating the common flow, (4) for effective apportionment and diversion, (5) for measuring each individual ditch supply, (6) for regulating each individual ditch flow, and (Y) for preventing damage by floods.” And they further recommend that “all devices employed to meet these requirements should be durable, of reasonable cost, and the most effective and economical in operation.” The report further recites that:
“To accomplish these results, the equipment should be carefuly planned, so that the various individual ditch devices will not only effectually perform their special funo tions, but at the same time constitute essential units of the completed whole, which should be as nearly as possible automatic' in its operations throughout. We recommend that such equipment should consist of the following units: (a) A principal dam in the river at the head of the system to serve (1) for impounding water in the river channel above to the extent needed to equalize the fluctuations in the flow of water from the lake; . . . (4) for supporting a substantial weir, (at or near the intake of the East Jordan Irrigation Company’s canal) to measure the flow of water into, the sys-[600]*600tern below; and (5) for containing gates that can be opened for the passage of water in excess of that of the storage capacity of the lake, and for flushing out the basin of forebay immediately above such dam (the impounding dam).”
Continuing, the report recites that, in the judgment of the engineers, a dam and gates should be placed in the river at the several points of diversion below the weir above mentioned; that the devices mentioned in their report are “absolutely necessary to the common uses of the system, and. therefore advise that all should be provided at the common •expense; and that the total cost thereof should be apportioned among the several canals and ditches of the system in the same proportions that the total commonwater supply is now apportioned among them.”
When the report was submitted to the court, the East Jordan Irrigation Company made timely objections to its adoption. One of the grounds of objection was that certain recommendations made therein by the board of engineers would, if adopted by the court, be in conflict with the provisions, hereinbefore referred to, of the original decree. The court, for the time being, reserved its decision on the question raised by the objection, and permitted the parties to this appeal to introduce evidence as to the necessity of making the improvements and installing the devices recommended in the report of the engineers. After much evidence was introduced, all of which was without conflict, the court overruled the objections made to the adoption of the report, and entered an order approving the plans and specifications submitted by the commissioner, which seem to have been in conformity with the recommendations of the hoard of engineers, for the construction of dams, weirs, and devices mentioned in the report.
The court made findings of fact and conclusions of law and •entered a decree which, in the main, are based upon and are responsive to certain agreements and stipulations made and entered into in open court by and between the parties to these proceedings. We deem it unnecessary to review or to [601]*601consider tbe findings and decree in so far as they are based upon the agreements and stipulations mentioned.
The findings of fact complained of by the appellants are as follows:
“(a) That IJtah Lake, Jordan River, and appliances for the diversion of water from said lake and river into the canals constitute one complete and entire irrigation system. That, in order to properly regulate the flow of water in the Jordan River, so that- the various parties may draw therefrom, with substantial accuracy, the quantity of water to-which they are respectively entitled under said decree, it is-necessary that certain controlling dams and devices, with proper weirs thereon and waterways therein, shall be constructed, particularly in the Jordan Narrows near the old Turner dam, near the intake of the Gardner Mill Race, and near the intake of the South Jordan and Salt Lake City Canals; and such devices are for the joint benefit of all parties to said action.
“(b) That a concrete diversion dam -and measuring weir shall be constructed in the Jordan Narrows at or near the intake of the East Jordan and Utah & Salt Lake Canals, a concrete dam and measuring weir at the intake of the Salt Lake City and South Jordan Canals, and a concrete dam and measuring weir at the intake of the North Jordan Canal, at what is known as the Gardner Mill Race. That the design and general construction of said dams and measuring weirs should conform substantially to the plans and specifications prepared by J. Fewson Smith, Jr., and D'. H. Blossom, copies of which should be filed with and approved by the court, prior to the commencement of the construction of said improvements, which should be made under the supervision of the commissioner of the court, and be prosecuted with reasonable diligence. That the cost and expense of the construction of said improvements should be borne by Salt Lake City, Utah & Salt Lake Canal Company, North Jordan Irrigation Company, and the Telluride Power Company in the following proportions, to wit:
[602]*602Salt Lake City....150/1098
Utah & Salt Lake C'anal Company.246/1098
Eastern Jordan Irrigation Company.170/1098
South Jordan Canal Company.142/1098
North Jordan Irrigation Company.120/1098
Telluride Power Company..270/1098”
After the court had signified its intention of making ánd filing the foregoing findings of fact, and before the same were filed in the cause, the Utah & Salt Lake Canal Company filed written objections to the construction of the dams mentioned in the findings of fact. The third and fourth grounds of objection are as follows:
“(3) That the construction of the proposed dam with openings as planned below the level of the top of the ‘old dam’ will add to the expense of the construction of a diverting' dam for the Utah & Salt Lake Canal Company without benefit to it.
“(4) It (the Utah & Salt Lake Canal Company) objects to the construction of the proposed dams and proposed channel changes in the Jordan Elver below the proposed upper dam so far as any portion of the cost thereof may be deemed chargeable against it. It is in no way interested in said dams and channel changes, and the same serve no purpose in diverting water into its canal.”
The power company made the timely objections which were in effect the same as those filed by the Utah & Salt Lake Canal Company. The objections were overruled, and a decree in conformity with the findings made by the court was duly rendered. From the decree, the Utah & Salt Lake Canal Company, the Telluride Power Company, and the East Jordan Irrigation Company appeal.
Appellants contend that the court acted without jurisdiction in declaring (1) that the improvements mentioned in the findings of fact above set forth shall be made, and (2) that the cost and expense of constructing the same shall be prorated according to the respective interests of the parties-in the waters of the Jordan Elver. The principal grounds urged against this portion of the court’s decision are (a) [603]*603that it is not- predicated upon any pleading in tbe cause, and (b) that it is in conflict with tbe provisions hereinbefore set forth of tbe original decree. On tbe other band, it is earnestly contended by respondents that no part of tbe last decree is in conflict with tbe original decree; that tbe last decree was entered as a supplemental decree only to meet tbe changed conditions brought about since tbe entry of tbe original decree by tbe increased volume of water in thé Jordan River during tbe portions of tbe irrigation season produced by tbe pumping of water from Utah Lake. In other words, they contend that tbe decree is merely supplemental to and in aid' of the original decree.
1 Courts of equity undoubtedly have the power to make such orders as may be necessary to carry out and give effect to their decrees. (4 Pom. Eq. Jur. (3d Ed.) 1317.) In proceedings of this character, where no change or modification is sought, and tbe only effect of tbe proceedings is to carry out tbe provisions of tbe decree, and make them effective, a motion supported by, affidavits setting forth tbe facts upon which tbe movement relies is ordinarily sufficient to invoke tbe action of tbe court. While this is tbe usual, and, as we think, tbe better practice, yet, where tbe parties to tbe decree appear in court, and evidence is introduced in support of and against granting tbe motion, as was done in this case, tbe failure to file an affidavit in support of tbe motion is not necessarily fatal to tbe proceedings. Where, however, a party to a decree seeks to have it changed or mod-'fied as to substance, bis remedy is by a bill of review setting forth tbe facts upon which be relies for relief. (Story’s Eq. Pl. section 338; 3 Ency. Pl. & Pr. 570, 571; 16 Cyc. 517.) It is vigorously contended on behalf of appellants that tbe decree entered in these proceedings cannot be upheld, because no pleadings were filed, and hence there are no issues upon which to base a decree. These proceedings were bad in an action over which tbe court bad, and for certain purposes still retains, jurisdiction. As hereinbefore pointed out, tbe court retained, and still retains, jurisdiction “for tbe purposes of (making) all necessary supplemental orders and decrees [604]*604wbicb may be required to make effectual tbe rights awarded and preserved by the decree.” In this proceeding the action -of the court was invoked, not for the purpose of adjudicating property rights and conflicting interests of the parties pertaining to the subject-matter of the action, but to carry into effect the provisions of the decree. The pleadings forming the issues and the judgment rendered thereon, in which the property rights of the respective parties to the action are adjudicated, were, and will continue to be, sufficient to authorize any of the parties to the decree to invoke the jurisdiction and action of the court when necessary to carry out and make effectual the provisions of the decree. This is not, as counsel for appellants seem to infer, a proceeding to adjudicate the property rights between the parties to the action, but a proceeding in which the action of the court is invoked to preserve the rights which have been adjudicated by the decree. Therefore pleadings were not necessary to invoke the jurisdiction and action of the court in the premises. The filing of a motion by any of the parties to a decree inviting the court’s attention to the particular matters or things necessary to be done in order to carry out and make effectual the provisions of the decree, and due service thereof on all the parties whose rights will be affected by the proceedings, is sufficient, and especially where, as in the case at bar, the parties appear in court, and take part in the proceedings.
2, 3 Moreover, after the action of the court had been invoked, and evidence was being taken, the court, as hereinbefore stated, temporarily suspended proceedings and appointed the board of engineers mentioned. The report and recommendations made and filed by the engineers are very elaborate, containing a full and detailed statement of the improvements, and the general character thereof, that they deemed necessary at each point of diversion along the Jordan River to enable the commissioner to efficiently and equitably distribute the waters of the stream in accordance with the provisions of the original decree. The commissioner, J. Fewson Smith, Jr., prepared plans and specifications of the improvements recommended by himself and the other [605]*605members of the board of engineers and a statement of the estimated cost of the improvements recommended a1f each of the points of diversion. These plans and specifications, with a detailed statement of the estimated cost, were submitted to the court, and the commissioner was examined and cross-examined at great length by counsel of the respective parties to this appeal. It was this report, not the motion, upon which the proceedings were in effect had. No pleading, however perfect as such, could contain a more complete and lucid statement of the facts of the subject-matter of inquiry than was contained in the report and recommendations made by the board of engineers, supplemented, as the report was, by the plans and specifications of the improvements and the estimated cost thereof submitted to the court by the commissioner. The parties were not, as has been suggested, left to grope in the dark, and to surmise and conjecture as to what was really before the court for investigation, or the purposes thereof. On the contrary, they were advised of and fully comprehended the purpose of the proceeding and the scope that it would probably take. After the report of the engineers was filed, Salt Lake City, one of the plaintiffs in the action, filed a notice which, so far as material here, is as follows:
■“To the Defendants and Interveners in the Above-Entitled
Action, and the Respective Attorneys:
“Please take notice that on a hearing of all undisposed-of matters in the above-entitled action, before Hon. C. W. Morse, Judge, on Tuesday, the 9th day of April, 1912, at 10 o’clock a. m„ or as soon thereafter as counsel can be heard, the plaintiff Salt Lake City will move the court to consider and determine the following undisposed-of pending matters in said cause, to wit: (1) What, if any, improvements recommended in the report of Commissioners A. E. Doremus, Willard T. Cannon, and J. E'ewson Smith, Jr., heretofore filed herein, shall be made, and the time for making the 'same, and how the expense thereof shall be apportioned.”
In response to this notice, appellants and other parties to the action- appeared in court, and took part in the proceed[606]*606ings. The court having jurisdiction of the subject-matter of the action, the parties, by appearing in court, and taking part in the proceedings, waived whatever defects, if any, there were in either of the notices because of the failure to recite more fully therein the matters which the action of the court was invoked to consider.
4 Let us assume for the sake of argument that, because of the importance of the questions involved, some document in the nature of a pleading setting forth in detail the matters to be considered by the court should have been filed in the first instance. The record conclusively shows that appellants were not prejudiced because this was not done. Nor were they, or either of them, prejudiced because of the informal manner in which the proceeding's were conducted.
While the motion upon which these proceedings were inaugurated is not as broad and comprehensive in its recital of facts as it should be, and especially so as no affidavit setting forth the facts was filed in support of the motion, yet we think appellants are estopped from assailing or challenging the provisions of the decree which are not in conflict with and in no way antagonistic to the original decree. The motion upon which the action of the court was invoked and these proceedings were had was filed by appellant the Utah & Salt Lake Canal Company, and its counsel, the author of the motion, during the proceedings repeatedly in open court expressly waived the filing of pleadings. This waiver was, at least tacitly, acquiesced in by the other two appellants. On one of these occasions, counsel said:
“I don’t care about any formal pleadings. I don’t think there is any need of any. I think the request of the commissioner is enough to set the ease.”
On another occasion he said:
“So far as I am concerned, on behalf of the Utah & Salt Lake (Canal Company) I stipulate the decision in this case may be made on the facts submitted to the court, taking into consideration all the legal rights as shown by the evidence as to any and all of the parties concerned, the same as if each [607]*607-and every legal right upon which there is evidence has been ■set forth fully in the pleadings.”
In response to the foregoing statement, counsel for appellant the East Jordan Irrigation Company said:
“I will supplement that on behalf of the East Jordan to this extent, that such contracts as have been read into the record as your honor may desire to have transcribed by the reporter for reference may be transcribed-at the expense of the parties.”
Later on in the proceedings, counsel for appellant the Utah & Salt Lake Canal Company said:
“We will concede, as a matter of law, that the court has the power reserved at this time. Questions of what shall be done, cost, and how it shall be paid for, the court has the power, as a matter of law, under the decree, to order that suitable measuring devices be put in these two places.”
One of the “places” referred to by counsel is the Jordan Narrows, at or near the intake of the canals of the East Jordan and Utah & Salt Lake Companies. The assignment of error in which the decree is assailed on the ground that it is not based upon issues made by proper pleadings is overruled.
5 The original decree, as hereinbefore stated, provides that the parties to the suit shall respectively construct and maintain, or cause to be constructed and maintained, “at their own cost, and under the direction or supervision of the commissioner appointed by the court, proper appliances for the accurate measurement of the waters awarded to them respectively;” and, as stated, the decree further provides that “original jurisdiction of this cause, and the subject-matter thereof, and the parties thereto, is hereby retained for the purpose of all necessary supplementary orders and decrees which may be required to make effectual the rights awarded and preserved by this decree.” The evidence, without conflict, shows that the dams, weirs, and appliances that have been and are now in use are inaccurate and inadequate for the proper distribution of the waters in accordance with the terms of the decree, and the undisputed evidence shows that the commissioner and his assistants are obliged to [608]*608incur considerable danger in regulating and distributing tbe waters under present conditions. On this point tbe commissioner testified, and bis testimony is not disputed, in part as follows:
“Tbe old dam must be renewed. It is impossible to operate any longer with it in its present condition without danger to tbe life of tbe man wbo tries to make any diversion there. . . . Tbe old Turner dam which is used for diverting water into tbe Utah & Salt Lake Canal, and for passing everything that belongs to all other parts of tbe system except tbe East Jordan Canal, ... is dangerous. . . . It is risky for one man to handle tbe headboards on tbe top of tbe platform under tbe condition that dam is now in. If ,a man gets in there be is very apt to drown.”
Tbe evidence also shows, in fact it is in effect conceded, that some of tbe parties to tbe decree get more water than they are entitled to receive under tbe decree, and that this inequality in tbe distribution cannot be obviated under present conditions. Appellants, in their briefs, say:
“It may be true some irrigation companies have at times been getting more water and others less than tbe original decree specified to be tbe carrying capacity of their canals. . . . It may be true that at times both tbe Utah & Salt Lake and East Jordan, for intermittent periods, get more water than they are entitled to.”
Tbe undisputed evidence shows that tbe improvements referred to, if made, would enable tbe commissioner to overcome these obstacles, and to properly and economically distribute tbe waters substantially as provided for in tbe decree. On this point tbe commissioner testified, and bis testimony is not disputed, as follows:
“Tbe structures I proposed will enable us to practically overcome tbe principal variations and fluctuations. In my opinion, I think we could regulate tbe flow of tbe water with substantial accuracy with these appliances. I do not know of any other appliances or any other wa,y that those appliances can be constructed that would combine tbe elements of efficiency and be substantial.”
[609]*609We are of tbe opinion, and. so bold, that the court, under the facts and circumstances as shown by the record, was fully warranted in ordering and decreeing that the improvements be made in accordance with the plans and specifications submitted by the commissioner and recommended by him, and that it did not exceed its jurisdiction in so doing.
6 We now come to the questions presented by the assignment directed to the findings of fact and decree, wherein it is held that the improvements mentioned are for the “joint benefit of all the parties to said action,” and that the cost of putting in and maintaining the improvements should be borne by the parties to the action according to their respective interests in the waters distributed. The record shows, and the court found, that Salt Lake City, .Utah & Salt Lake Canal Company, the East Jordan Irrigation Company, and the North Jordan Irrigation Company have a common interest in the impounding dam and in the pumping plant. Counsel for appellants discuss and criticize the court’s findings regarding the circumstances and conditions under which the pumps may be put in operation each year, and the basis upon which the cost of starting and operating them shall be prorated among the parties benefited thereby. We think it sufficient to here state, without reviewing the evidence bearing upon this question, that this assignment is without merit, and is therefore overruled. It is conceded that the dam near the intake of the canal of the Power Company and the TJtah & Salt Lake Canal Company and the intake of the East Jordan Company canal, and referred to in the evidence as the “main” dam, is used, not only as a diverting dam for these canals, but that it is also used and is necessary to measure and determine the amount of the flow of the river over the dam to the appropriators down the stream. This dam and weir being for the joint benefit of the appellants and of Salt Lake City, South Jordan Canal Company, and the North Jordan Irrigation Company, the court held, and, as we think, correctly, that the cost of their construction should be pro[610]*610rated between the parties, and that each party should pay in proportion to his interests in the stream. The P'ower Company, however, takes the position that it ought not to be re-, quired to pay any portion of the cost of constructing and maintaining this dam, on the ground that it does not, so it contends, “receive any substantial benefits therefrom.” Its-counsel, in their printed briefs say:
“If there is to be any equity in the apportionment of these costs,- it must be on the basis of benefits received, and not on :a mere possibility. To the extent to which the parties use these improvements, they should pay therefor. That seems to us to be the only fair basis upon which to divide these expenses. And if the Power Company does not actually receive any substantial benefits therefrom, ... it should not be required’ to pay any of the costs thereof.”
The commissioner testified, and his evidence is not disputed :
“If the Telluride Power Company has the right to use the water of the South Jordan Canal under the decree, that water would have to be taken through the Utah & Salt Lake Canal, and would require a sufficient diversion dam to turn, not only the water to which the Utah & Salt Lake Canal is-entitled, but also the quantity the Telluride P'ower Company might have the right to use of the South Jordan water. The same is true of the North Jordan water and the City water. The improvements here suggested take that into consideration.”
Further along in his testimony he says:
“If the city, prior claimants, and the North Jordan are using the water, the Telluride Power Company cannot get all the water it sees fit on account of the incapacity of the canal-to carry it. Leaving that out, there is no reason why they can’t get it. It depends entirely upon their providing means of using it. I know of no reason why it is not under their control, if they see fit to exercise it.”
The extent of the power company’s right to the use of the water for power purposes is determined and fixed by the original decree as follows:
[611]*611“The Power Company is the owner of and entitled to the-right to nse all the water of Jordan River flowing in and through the channel thereof, at and above a point on said river where the power plant of said company is situated, to the nse of which the several persons and claimants diverting-the water of the river north and below the said power plant are entitled as appropriators, with fixed and primary rights,, as' awarded by this decree, and to convey such water to its power plant for nse in the operation of the same, and to deliver the same, after such use, back into the river . . at a point opposite the place of the use by the said company.”'
The decree also specifically provides that the Power Company also has the right to the nse “in the same manner,” for operating its power plant, the water awarded by the decree to-the South Jordan Canal Company and to Salt Lake City. The-evidence shows, in fact it is conceded, that the Power Company has two wheels in its plant, and that it requires from “between eighty-six and 100 to 120 second feet of water to operate each wheel.” That is, to operate both wheels at the same time, it requires approximately from 200 to 240 second feet of water. In other words, the maximum amount of water required to operate the power plant to its full capacity is 240 second feet. The Utah & Salt Lake Canal Company has decreed to it 246 second feet of water. The carrying capacity of this canal is 300 second feet only. Because of the limited carrying capacity of the canal, the Power Company is, and has been, unable to run more than one wheel at a time, and hence has not at any one time used to exceed 120 second feet of water. The Power Company, nevertheless, under the decree, has the right to the use of sufficient water (240 second feet)' to run its plant at its full capacity, and, whenever it provides-the necessary facilities for carrying the water to which it is entitled from the dam in question by enlarging the Utah & Salt Lake Canal Company’s canal, or -otherwise, the commissioner will, under the decree, be required, if requested so to do, to distribute this amount of water to it. It is nowhere suggested or intimated in the record that the Power Company has any [612]*612intention whatever of disclaiming or abandoning any portion of its right to the nse of the water decreed to it. For aught that appears in the record the Power Cbmpany may at any time provide the necessary means for carrying the amount of water (240 second feet) necessary to operate its power plant to its full capacity. We therefore know of no good reason, and certainly none has been suggested, why the Power Company should not be required to contribute to the cost of constructing and maintaining the dam in question in proportion to its maximum right to the use of water. But in the apportionment of costs it ought not be assessed and required to pay for water that it does not need and cannot possibly use. Under the undisputed facts the Power Company, in the apportionment of the costs of the construction of the dam and weir in question, should be assessed for 240 second feet of water only, instead of 270 second feet as found by the court. The court, therefore, erred in its apportionment of the costs and expenses in that regard.
7 Appellants object to the construction of that kind of a dam recommended by the commissioner and found by the court to be proper and suitable for measuring and partially distributing the water at that point, on the ground that it will be a much more -expensive dam- than the necessities of the situation demand. The estimated cost of the dam is $12,180. We do not think that, under the facts and circumstances as disclosed by the record, the court exceeded its power, or abused its discretion, in ordering the improvements as planned, and recommended by the commissioner. Up to this point we think the court clearly acted within the powers retained by it in the original decree. But there is no evidence whatever in the case which sustains, or tends to sustain, that part of the decision wherein it is held that the construction of a “concrete dam and measuring weir at the intake of the Salt Lake City and South Jordan Canal, and a concrete dam and measuring weir at the intake of the North Jordan Canal, at what is known as the Gardner Mill Pace,” would be “for the joint benefit- of all the parties to said action.” As hereinbefore pointed out, the intake of [613]*613the Salt Lake City and South Jordan Canal is approximately one mile, and the intake of the North Jordan Canal is ten miles farther down the stream than the intakes of the canals of appellants. We have carefully examined the record, and have considered every phase of the question urged and discussed by counsel in their oral arguments and in their printed briefs, and we fail to see, and are unable to conceive of, any benefit whatever, either directly or indirectly, that would inure to appellants, or either of them, by the construction of dams and measuring devices in the river channel below where the stream passes the intakes of their canals. The finding, therefore, cannot, upon any legal or equitable principle, be upheld. Neither can that part of the decision be sustained in which it is held that the cost of the construction of the dams and measuring weirs last mentioned shall be prorated between the parties to the action according to their respective interests in the waters of the Jordan Liver. The decree in that regard is in conflict with and in effect nullifies certain parts of the original decree herein set forth, wherein it is provided that the parties to the suit “shall respectively construct or cause to be constructed at their own cost . . . proper appliances for the correct measurement of waters awarded to them respectively, and thereafter shall maintain and keep in place dams, headgates, flumes, canals, and pen-stocks, and other means by which said water is diverted and used.” Lespondents contend with much earnestness that this part of the decree was entered by agreement of the parties, and at the urgent request of appellants. This, we think, is true as to the TJtah & Salt Lake Canal Company; but the record shows that the East Jordan Irrigation Company repeatedly, during the proceedings in the lower court, objected to having any portion of the cost of the construction of the improvements in the river below their diverting dam assessed against it, and the Power Company objected to paying any portion of the cost of the construction of the contemplated improvements, regardless of where, or at wha,t point on the river, they may be installed. And we fail to find anything in the record that is susceptible of being con-[614]*614,-3trued as an agreement or even as an acquiescence on tbe part of these two appellants, or either of them, that that part of the decree apportioning costs should or might be entered.
The cause is remanded, with directions to the trial court to set aside that part of the findings of fact, conclusions of law, and decree in which the costs of improvements mentioned are apportioned between the parties to these proceedings, and also that part in which appellants are required to pay a portion of the cost of the improvements made in the river below the diverting dam at the intakes of their canals, and to make findings thereon, and to enter judgment in accordance with the views herein expressed. Each party to this appeal to pay its own costs.