WADE, Justice.
E. Penn Smith, plaintiff and respondent herein, brought this suit against Moroni and Ervil Sanders, defendants and appellants herein, to determine his rights to water which arose in a spring and to an easement or a right of way for a pipeline over appellants’ land and to restrain them from interfering with water which arose in said spring on land being bought by Smith and which was conveyed by means of a pipeline which traversed lands owned by appellants to the land being bought by respondent. From a judgment in favor of plaintiff, defendants appeal.
Smith is the assignee of a certificate of sale from the State Land Board of a certain “L” shaped tract of land in Washington County, Utah, consisting of three 40-acre tracts. The spring from which the water arises is located on one end of that tract and the pipeline conveys this water from one end of the state lands to the other over a strip of privately owned land which now belongs to Sanders where it connects with cabins located on the state lands now being bought by Smith. Appellants bought the privately owned land from Almorean Bagley who originally had some kind of interest in both the state and privately owned tracts involved in this suit. Almorean Bagley’s half-brother, L. L. Bagley and his wife originally had a purchase contract with the State Land Board for the land Smith is now buying. In 1931, Almorean Bagley went into possession of these state lands. He later had an understanding or agreement with his brother that he was to have a half interest therein and proceeded to build cabins and by 1935 to install the pipeline in controversy herein from the spring to those cabins. He testified that he was told that the water from the spring belonged to the owner of the privately owned land, the lands
now owned by the Sanders, and was being used by him and that he therefore bought that 40-acre tract in 1981, in order to get the water right. He also testified that although he was the purchaser of the property, the owner conveyed this land to the National Security Corporation or National Safety ¡Corporation (his brother being an officer of both corporations) to be held in trust for him and that in 1935 in pursuance of this trust such corporation conveyed the property to him. He insisted that his brother had no interest in the privately owned lands. He further testified that after he acquired this land he planted peach and fig orchards on it and used the water from the spring in their cultivation until 1936, when he left. In 1937, L. L. Bagley leased the state land to Smith and in 1939 L. L. Bagley entered into an agreement to sell the state land and the pipeline to Smith. At the time this agreement was entered into neither L. L. Bagley nor his wife had any interest in these lands because their contract of purchase had been cancelled by the State Land Board for failure to make the payments due. Smith’s mother then entered into a contract of purchase with the State Land Board for these tracts and subsequently assigned this contract to Smith. Almorean Bagley sold the privately-owned tract and the pipeline which he had installed and which ran from the spring to the cabin to appellants who in 1945 cut into the pipeline on their land and placed taps in it and thereby conveyed the water onto their land.
The court found that Almorean Bagley and his half-brother, L. L. Bagley, were jointly interested in all the land now in possession of respondent and appellants at the time the pipeline was installed and the cabins built. That in 1935, the Safety First, Inc., a corporation of which L. L. Bagley was president, transferred the privately-owned land to Almorean Bagley but did not reserve a right of way for the pipeline; and that after the pipeline was constructed the waters from the spring were used, although perhaps not exclusively, for culinary and irrigation purposes in connection with the cabins on the state lands. The court also
found that neither the Sanders nor their predecessors in interest had used the water adversely to Smith or his predecessors for a period of seven years. The court concluded that the Sanders had no right or interest in the spring and that Smith had an easement over appellants’ land for the pipeline conveying the waters from the spring.
It is Sanders’ contention that the court erred in finding that they and their predecessors in interest had not obtained the right to the use of the water of the spring by a use adverse to respondent and his predecessors in interest for a period of more than seven years. They argue that the evidence is clear that the owners or those who held possession for the owners of what is now appellants’ land used the waters of the spring in question here adversely to the original appropriator of the water who was then in possession of the land upon which the spring arises, and that this user continued over a period of more than seven years.
The record discloses that in 1925 or 1926, one Lynn Jarvis was in possession of the state lands when the spring was discovered for him at about that time and used it on the lands now possessed by Smith until 1926 or 1927. There is no evidence in the record, however, that Lynn Jarvis appropriated the waters from this spring in the manner required by our laws.
At the time that the water in controversy herein was discovered the only manner in which the right to acquire the use thereof could be initiated was by filing an application therefor with the State Engineer, and the only manner in which the water could be appropriated was either by approval of said application by the State Engineer or by decree of court in an appeal from a decision of the State Engineer rejecting such application. Unless there had been a valid appropriation of the water no one could obtain any rights to it by adverse user even under our decisions in
Hammond
v.
Johnson,
94 Utah 20, 66 P. 2d 894, and
Wellsville East Field Irrigation Co.
v.
Lindsay Land & Livestock Co.,
104 Utah 448, 137 P. 2d 634, which held the right to the use of appropriated water could be
obtained by adverse possession before our legislature in Session Laws of Utah, 1939, Ch. Ill, amended Sec. 100-3-1, R. S. U. 1933, and prohibited the acquiring of the right to the use of either appropriated or unappropriated waters by adverse possession. Smith who filed an application for this water which was approved by the State Engineer on March 5, 1946, appears from the evidence to be the first legal appropriator of this water, and he now has the right to complete his appropriation, and make proof thereof before the State Engineer since there was no appeal from the State Engineer’s decision approving the appropriation and that is the only method provided in the statute by which the State Engineer’s decision may be reviewed.
Did the court err in finding that Smith is the owner of an easement over and across Sanders’ land for the conveyance of this water through the pipeline and that respondent was entitled to an injunction restraining appellants from interference with the use of this easement?
It is Smith’s contention that he obtained the easement over appellants’ property by implied grant.
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WADE, Justice.
E. Penn Smith, plaintiff and respondent herein, brought this suit against Moroni and Ervil Sanders, defendants and appellants herein, to determine his rights to water which arose in a spring and to an easement or a right of way for a pipeline over appellants’ land and to restrain them from interfering with water which arose in said spring on land being bought by Smith and which was conveyed by means of a pipeline which traversed lands owned by appellants to the land being bought by respondent. From a judgment in favor of plaintiff, defendants appeal.
Smith is the assignee of a certificate of sale from the State Land Board of a certain “L” shaped tract of land in Washington County, Utah, consisting of three 40-acre tracts. The spring from which the water arises is located on one end of that tract and the pipeline conveys this water from one end of the state lands to the other over a strip of privately owned land which now belongs to Sanders where it connects with cabins located on the state lands now being bought by Smith. Appellants bought the privately owned land from Almorean Bagley who originally had some kind of interest in both the state and privately owned tracts involved in this suit. Almorean Bagley’s half-brother, L. L. Bagley and his wife originally had a purchase contract with the State Land Board for the land Smith is now buying. In 1931, Almorean Bagley went into possession of these state lands. He later had an understanding or agreement with his brother that he was to have a half interest therein and proceeded to build cabins and by 1935 to install the pipeline in controversy herein from the spring to those cabins. He testified that he was told that the water from the spring belonged to the owner of the privately owned land, the lands
now owned by the Sanders, and was being used by him and that he therefore bought that 40-acre tract in 1981, in order to get the water right. He also testified that although he was the purchaser of the property, the owner conveyed this land to the National Security Corporation or National Safety ¡Corporation (his brother being an officer of both corporations) to be held in trust for him and that in 1935 in pursuance of this trust such corporation conveyed the property to him. He insisted that his brother had no interest in the privately owned lands. He further testified that after he acquired this land he planted peach and fig orchards on it and used the water from the spring in their cultivation until 1936, when he left. In 1937, L. L. Bagley leased the state land to Smith and in 1939 L. L. Bagley entered into an agreement to sell the state land and the pipeline to Smith. At the time this agreement was entered into neither L. L. Bagley nor his wife had any interest in these lands because their contract of purchase had been cancelled by the State Land Board for failure to make the payments due. Smith’s mother then entered into a contract of purchase with the State Land Board for these tracts and subsequently assigned this contract to Smith. Almorean Bagley sold the privately-owned tract and the pipeline which he had installed and which ran from the spring to the cabin to appellants who in 1945 cut into the pipeline on their land and placed taps in it and thereby conveyed the water onto their land.
The court found that Almorean Bagley and his half-brother, L. L. Bagley, were jointly interested in all the land now in possession of respondent and appellants at the time the pipeline was installed and the cabins built. That in 1935, the Safety First, Inc., a corporation of which L. L. Bagley was president, transferred the privately-owned land to Almorean Bagley but did not reserve a right of way for the pipeline; and that after the pipeline was constructed the waters from the spring were used, although perhaps not exclusively, for culinary and irrigation purposes in connection with the cabins on the state lands. The court also
found that neither the Sanders nor their predecessors in interest had used the water adversely to Smith or his predecessors for a period of seven years. The court concluded that the Sanders had no right or interest in the spring and that Smith had an easement over appellants’ land for the pipeline conveying the waters from the spring.
It is Sanders’ contention that the court erred in finding that they and their predecessors in interest had not obtained the right to the use of the water of the spring by a use adverse to respondent and his predecessors in interest for a period of more than seven years. They argue that the evidence is clear that the owners or those who held possession for the owners of what is now appellants’ land used the waters of the spring in question here adversely to the original appropriator of the water who was then in possession of the land upon which the spring arises, and that this user continued over a period of more than seven years.
The record discloses that in 1925 or 1926, one Lynn Jarvis was in possession of the state lands when the spring was discovered for him at about that time and used it on the lands now possessed by Smith until 1926 or 1927. There is no evidence in the record, however, that Lynn Jarvis appropriated the waters from this spring in the manner required by our laws.
At the time that the water in controversy herein was discovered the only manner in which the right to acquire the use thereof could be initiated was by filing an application therefor with the State Engineer, and the only manner in which the water could be appropriated was either by approval of said application by the State Engineer or by decree of court in an appeal from a decision of the State Engineer rejecting such application. Unless there had been a valid appropriation of the water no one could obtain any rights to it by adverse user even under our decisions in
Hammond
v.
Johnson,
94 Utah 20, 66 P. 2d 894, and
Wellsville East Field Irrigation Co.
v.
Lindsay Land & Livestock Co.,
104 Utah 448, 137 P. 2d 634, which held the right to the use of appropriated water could be
obtained by adverse possession before our legislature in Session Laws of Utah, 1939, Ch. Ill, amended Sec. 100-3-1, R. S. U. 1933, and prohibited the acquiring of the right to the use of either appropriated or unappropriated waters by adverse possession. Smith who filed an application for this water which was approved by the State Engineer on March 5, 1946, appears from the evidence to be the first legal appropriator of this water, and he now has the right to complete his appropriation, and make proof thereof before the State Engineer since there was no appeal from the State Engineer’s decision approving the appropriation and that is the only method provided in the statute by which the State Engineer’s decision may be reviewed.
Did the court err in finding that Smith is the owner of an easement over and across Sanders’ land for the conveyance of this water through the pipeline and that respondent was entitled to an injunction restraining appellants from interference with the use of this easement?
It is Smith’s contention that he obtained the easement over appellants’ property by implied grant. He argues that at the time of the installation of the pipeline there was a unity of owenrship in both the servient and dominant estates; that when the unity of ownership was severed an ■implied grant arose because the servitude imposed before the severance was obvious and permanent, was in use and was reasonably necessary for the fair enjoyment of the other part of the estate.
Smith’s argument assumes there was a unity of title at the time the pipeline was laid and that there was a severance of this title. However, the evidence does not sustain such an assumption. From the evidence it appears that since 1942 Smith has been in possession of the state lands under an assignment of a contract of purchase from the State Land Board. That prior to that time L. L. Bagley and his wife had the right to possession under a contract of purchase with the State Land Board. The state has always been the owner of the lands now claimed by Smith. At one time, L. L. Bagley had a contract to purchase that land
from the state, and during that time a corporation of which he was president obtained title to the privately owned tract, to be held, however, in trust for Almorean Bagley who was purchasing this property from the original owner. Thereafter, L. L. Bagley lost his interest in the state lands as a result of his failure to keep up the payments on his contract as they became due. At that time, the pipeline was on the private lands and the water was being conveyed across them to the state lands. After he had lost his interest in the contract to purchase he assigned such interest to Smith, and by the terms thereof expressly conveyed the pipeline and its right of way. If L. L. Bagley, at that time, had any interest in the pipeline or the right of way for the water, he expressly conveyed it to Smith.
Smith’s claim is that when L. L. Bagley lost his interest in the state lands, since, prior to that time he had some interest in the privately-owned lands, and also some interest in the state lands, that constituted a unity of title, and when his interest reverted to the state it constituted a severance of the state lands, which resulted in an implied conveyance of this easement to the state.
These facts do not constitute an implied conveyance of this easement to the state. L. L. Bagley never owned or held title to either of these tracts of land; the National Safety Corporation of which he was president merely held the title to the private lands in trust for Almorean Bagley and the evidence does not disclose that L. L. Bagley had any interest therein, all he had was a contract to purchase the state lands, which he later lost for failure to live up to his contract. There was never any unity of ownership of this property, and therefore there could be no severance. Ordinarily a severance which results in an implied easement contemplates that one person being the owner of two tracts of land conveys only one of them; that while there was a unity of ownership a part of the property retained has been used for the benefit of the part conveyed under such circumstances that had the parties anticipated the later developments, they would have expressly granted an
easement with the part conveyed, and under such circumstances the law will imply an easement. Here there was no grant by L. L. Bagley of his interest in the state land, he lost that interest by his failure to keep up his payments. Smith does not claim his present interest through him, his interest is the result of another contract of purchase with the state. There is no reason, whatever, to believe that had the parties anticipated the situation as it later developed that L. L. Bagley would have expressly conveyed this pipeline and right of way if he had an interest therein to the state. Under the facts as they here exist there was no implied grant of this easement. Since there was never a unity of ownership of respondent’s and appellants’ lands there could not have arisen an easement by implied grant.
Although there could not have arisen an easement by implied grant, the court did find that L. L. Bagley was jointly interested with Almorean Bagley in the privately-owned land. We are unable to determine upon what grounds the court so found. We have carefully examined the record but find the evidence ambiguous on what interest, if any, L. L. Bagley had in such land. It may be that the court, thought the evidence pointed to a partnership project between L. L. Bagley and Almorean Bagley, or that there was an oral agreement between the two brothers that each was to have an interest in the other’s land, which agreement was sufficiently performed to take it out of the statute of frauds. Of course if L. L. Bagley had an interest in the privately-owned land and the pipeline, then Smith obtained that interest when L. L. Bagley conveyed to him.
In view of the ambiguity of the evidence we are of the opinion that this case should be re-tried on the matter of Smith’s rights to the pipeline and an easement over Sanders’ land, and the parties be allowed, if they desire, to amend their pleadings to conform with whatever the true situation is. Smith’s right to the water being clearly established, this issue is not to be retried.
Reversed and remanded for new trial in accordance with this opinion. Each party to bear his own costs.
McDonough, c. j. concurs.