respective cities, and the boards of trustees in their respective towns, are hereby authorized to grant licenses, as contemplated in section twelve hundred and forty-two, to any person over the age of twenty-one years, upon an application being made for such license, by petition signed by the applicant and filed with the county clerk, city recorder, or town clerk, as the case may be. Said petition must state definitely the particular place at which any of the liquors named in section twelve hundred and forty-two are intended to be manufactured, sold, bartered, dealt out, or otherwise disposed of, and whether the applicant intends to carry on a retail or wholesale business. Before a license is granted to the applicant he shall execute a bond to the county, city, or town, as the case may be, conditioned that during the continuance of his license he will keep an orderly and well-regulated house; that he will not allow gambling with cards, dice, 'or any other device or implements used in gambling, within his house, out-house, yard, or other premises under his control; that he will pay all damages, fines, and forfeitures which may be adjudged against him under any of the provisions of this title. Said bond shall be fixed by the board of county commissioners, city council, or board of trustees of the town, as the case may be, in any sum not less than five hundred dollars, nor more than one thousand dollars, with two or more sureties, to be approved by said board, by the mayor of the city, or president of the board of trustees of the town, as the case may be. Said sureties must justify on oath, before some officer authorized to administer oaths, that they are residents within the county, city, or town, as the case may be, and worth the amount justified to, over and above all other debts and liabilities, exclusive of property exempt from execution. Such justifications shall be in writing, signed by the persons justifying, and certified to by the officer who administers the oath. and attached to and filed with the bond. [C. L. § 2157*.

1244. Id. Rate. Time. The board of county commissioners, the city council, or the board of trustees of the town, as the case may be, after the petition, statement, and bond have been filed as required in the preceding section, shall determine the amount to be paid for the license prayed for, which shall be at a rate of not less than four hundred dollars, for the period of one year; but licenses of the same classes of business shall be uniform in amount in such town, city, or county. Said board or council, as the case may be, shall also determine the time for which the license shall be granted, but no license shall be issued for a longer period than one year, nor for a less period than three months. [C. L. § 2158*.

1245. Id. Refusal for good cause. Proximity to schools, etc. Any application for such license may be refused for good cause, in the discretion of the board of trustees of the town, the city council of the city, or board of county commissioners, and no such license shall be granted to any establishment, except a hotel, located within three hundred feet of any public school building being used for that purpose, or within fifty feet of any theatre, variety theatre, concert hall, or any like place of amusement; provided, that the commissioners of any county shall not grant a license for the sale of intoxicating liquors within a half mile of the boundaries of any incorporated city or town for a less amount than is provided by ordinance of any such city or town. [C. L. § 2158*; '92. p. 58*.

1246. Selling to female in wine room. No keeper of any saloon, tippling house, or dram shop shall have or keep in connection with, or as part of, such saloon, tippling house, or dram shop, any wine room or other place, either with or without door or doors, curtain or curtains, or screen of any kind, into which any female person shall be allowed to enter from the outside, or from such tippling house or dram shop, and there be supplied with any kind of liquor whatsoever. Any person violating any provision of this section shall be guilty of a misdemeanor. [C. L. § 2158*; '92, p. 58*.

1247. Revocation. Notice.

The board of county commissioners, city

council, or the board of trustees, for good cause and upon not less than three days' notice to the licensee of the time and place at which the proposed revocation will be considered, may revoke a license granted to the keeper of any saloon, tippling house, or dram shop, or for the selling or giving away of any intoxicating drink or malt liquors within the county, city, or town, as the case may be. ['92, p. 58.

Defendant issued plaintiff a liquor license, and the latter paid for three months; within a month after issuance, defendant revoked the license without preferring charges, upon informal notice of the

hearing, but without citing him to show cause; held, that the revocation without giving plaintiff an opportunity to be heard was void. Pehrson v. City Council, 14 U 147; 46 P. 657.

1248. Payment for license. Form. The amount to be paid for a license as determined by the board of county commissioners, or city council, or the board of trustees, must be paid into the county, city, or town treasury, as the case may be, by the applicant, who, upon receiving the treasurer's receipt, shall present the same to the county clerk, the town clerk, or the city recorder, as the case may be. The county clerk, or town clerk, or city recorder shall thereupon issue to the applicant a certificate of license, which certificate must state the name of the person licensed; the place of business; the kind or kinds of liquors to be manufactured, sold, bartered, or otherwise disposed of; the date of commencement and of expiration of such license; whether it is for a retail or wholesale business; that the person named therein is duly authorized to carry on the business of manufacturing, selling, bartering, or otherwise disposing of intoxicating liquors at the place and for the time therein specified; and that the license is not transferable. Said certificate shall be signed by the county clerk, town clerk, or city recorder, as the case may be, who shall seal the same with his official seal. [C. L. § 2159*.

1249. Selling to insane or idiotic persons. Minors. Any person who shall knowingly give, sell, or otherwise dispose of any intoxicating drink to an insane or idiotic person, and any person licensed as herein provided, or any other person, who shall knowingly give, sell, or otherwise dispose of any intoxicating drink to any minor, or who shall permit any of said persons to be, or remain in his place of business where liquors are sold, without the written consent of the parents or guardians thereof, or who shall give, sell, or otherwise dispose of any intoxicating drink to any person who is known in the community as a habitual drunkard, shall be deemed guilty of a misdemeanor. [C. L. § 2160*; '90, p. 36*

1250. Sunday selling. Gambling, dancing, sleeping, etc., on premises. Any person licensed as aforesaid, or any person neglecting or refusing to obtain a license, as herein provided, who shall either:

1. Sell, give away, or otherwise dispose of any intoxicating drink at any time during the first day of the week, commonly called Sunday, except for medical purposes upon the prescription of a physician; or,

2. Permit on his premises where such intoxicating drink is sold, any gambling, by means of dominoes, cards, dice, or other articles, or any other description of gambling; or,

3. Permit dancing, drunkenness, sleeping, or lodging in the night time, or who shall permit any disorderly conduct in his saloon licensed for the sale of liquors, shall be deemed guilty of a misdemeanor, and shall be punished by a fine in any sum less than three hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, at the discretion of the court. [C. L. § 2161.

1251. Married women may sue for damages. It shall be lawful for any married woman to institute and maintain, in her own name, a suit on any such bond for all damages sustained by herself and children, or either, on account of the sale of intoxicating liquors, and the money, when collected, shall be paid over for the use of herself and children, or either. [C. L. § 2162.

1252. Suits for liquor bills. No suit for liquor bills, when sold in less quantity than five gallons at one time, shall be maintained in any court in the state, and when it shall be made to appear that any promissory note, mortgage, or other obligation on which a suit is pending was given for liquor sold in less quantity than five gallons at one sale, and that plaintiff or one of several plaintiffs had knowledge of that fact at the time he acquired such note, mortgage, or other obligation, such suit shall be dismissed at the cost of the plaintiff, except such sales be for medical, mechanical, or sacramental purposes. [C. L. § 2164*.

1253. Selling without license. Any person who shall sell or otherwise dispose of, for gain, upon any pretext whatever, malt, spirituous, or vinous liquors, or any intoxicating drink, without first having complied with the conditions of, and obtained a license as set forth in this title, shall, for each offense. be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine in any sum less than three hundred dollars, or by imprisonment not exceeding six months in the county or city jail, or by both such fine and imprisonment; and shall be liable, in all respects, to the public and to individuals, the same as he would have been had he given bonds and obtained a license as herein provided. [C. L. § 2165.

1254. Justice's jurisdiction in suit on bond. All suits for damages or expenses arising under any of the provisions of this title, may be commenced and maintained before any justice of the peace of the proper county or city, when the amount of the damages claimed is less than three hundred dollars, although the penalty in the bonds may exceed that amount, and the judgment shall be for the amount of damages proved; and successive suits by different persons having different causes of action, may be had upon the same bond until the aggregate amounts of all judgments rendered thereon equal the penalty thereof. [C. L. § 2166.

1255. Judgment on conviction. In all judgments or convictions of any person of a misdemeanor, under the provisions of this title, the court, in its discretion, may order that the defendant, in default of payment of the fine and costs, be imprisoned until such fine and costs are paid, said imprisonment, however, not to exceed the term of six months in all; or may order that executions issue against the defendant for such fine and costs, and should any such execution be returned unsatisfied, either wholly or in part, a suit may be maintained upon any bond that such defendant may have given in accordance with section twelve hundred and forty-three. [C. L. § 2167.

1256. Rights of cities and towns preserved. Vine growers. No provision of this title shall be so construed as to authorize any board of county commissioners, or county officers to interfere with the rights granted to municipal corporations to license, tax, and regulate, restrain, and prohibit the manufacture. selling, or in any other manner disposing of vinous, spirituous, and malt liquors, within the corporate limits, or to prohibit vine growers, without a license, from expressing and selling on the premises where expressed, the pure juice of the grape, in quantities of not less than five gallons, to one person at one time; provided, that where any municipal corporation has the right in its charter to prohibit the manufacture, sale, or other disposal of spirituous, vinous, and malt liquors, nothing in this title shall be so construed as to impair such right. [C. L. § 2168.

1257. Selling on election days. It shall be unlawful for any person either licensed or unlicensed to sell, give away, or in any manner dispose of directly or indirectly any spirituous, vinous, or other intoxicating liquors on any part of any day set apart or to be set apart for any general or special election for any state, county, municipal, district, or precinct officer, except members of the board of education or district school trustees, in any election district in any of the counties or municipalities in this state, except for medical purposes upon the

prescription of a physician. Any person violating any of the provisions of this section shall be guilty of a misdemeanor. [C. L. § 2169*; '90, p. 36*.

1258. Physicians' prescriptions. If false. Any physician who shall issue to any person a prescription to obtain any intoxicating liquors at any time. when the sale or disposal thereof shall have been forbidden by law, ordinance, or proclamation, shall certify on said prescription that the health of the person to whom the prescription is issued requires, and would be promoted by, the particular kind of liquor prescribed. Any physician who shall issue any prescription for intoxicating liquors contrary to this section, or believing the same to be false, shall be guilty of a misdemeanor. [C. L. § 2170; '90, p. 37*; '94. p. 78.

1259. Proclamation forbidding sale on legal holiday. The mayor of any incorporated city in this state, and the president of the board of any incorporated town, are hereby authorized, whenever in their judgment the public good shall demand it, to forbid, by proclamation, the sale or disposition in any manner. within their respective cities or towns, of spirituous, vinous, or other intoxicating liquors, upon any day designated or set apart in this state as a legal holiday. ['94, p. 78.

1260. Id. Penalty. Any person, whether licensed or not, who shall sell, give away, or in any manner dispose of for gain, any spirituous, vinous, or intoxicating liquors, upon any day when such sale or disposition shall have been forbidden by proclamation, except for medical purposes upon a prescription issued by a regular practicing physician, shall be guilty of a misdemeanor. ['94, p. 78.

TITLE 33.

IRRIGATION AND WATER RIGHTS.

1261. Water right acquired by appropriation. The rights to the use of any of the unappropriated waters of the state may be acquired by appropriation. [C. L. § 2780*; '97, p. 219.

The water of a prior appropriator is fixed by the extent of his appropriation for a beneficial use, and others may subsequently appropriate any water of the stream not so used by a prior appropriator, and such latter appropriation becomes a vested right, and is entitled to as much protection as the former, and the right to which he cannot be deprived of except by voluntary alienation or by abandoning it. The right of the former being thus fixed, he cannot enlarge his rights to the detriment of the latter. Becker v. Marble Creek Irr. Co., U.; 4 P. 892. See also, Munroe v. Ivie, 2 U. 535. Stowell v. Johnson, 7 U. 215; 26 P. 290. Salina Creek Irrigation Co. v. Salina Creek Stock Co., 7 U. 456; 27 P. 578. Sections 2339 and 2340 R. S. U. S. create no title as against the government in a person taking possession of public land for the purpose of procuring water or digging ditches for canals, without the performance of any work thereon. Bear River Irr. Co. v. Garland, 164 U. S. 1. Affirming 9 U. 350: 34 P. 368.

The discoverer of percolating waters on public lands, by digging a well for the purpose of collecting the same for use, acquires an easement in the land for the maintenance of his well, and a right to the water as an appropriator thereof from a "natural source of supply" (C. L. 1888, sec. 2780), as against a subsequent locator of the land on which the well is situated. Sullivan v. Northern Spy Mining Co., 11 U. 438; 40 P. 709. The right of one who discovers and appropriates perco

lating waters on public lands by digging a well to collect the water, is subject to the right of a subsequent locator of the land to sink a well adjoining such well, though it dry up the first. Id.

A decree adjudging that defendant should have one good irrigation stream" is void for uncertainty. Smith v. Phillips, 6 U. 376; 23 P. 932. A decree allowing plaintiff enough water to irrigate sixty acres of land" was affirmed; the court being of opinion that the amount could be approximated. Holman v. Pleasant Grove, S U. 78 ; 30 P. 72. But a finding that defendant was entitled to sufficient "water to irrigate thirty-one acres” and to “a small amount of water for culinary and domestic pur*poses," was ordered modified as uncertain, the court saying that the decree should state the amount of water in miner inches, or fractional parts of the stream in question. Nephi Irr. Co. v. Vickers. U.; 49 P. 301.

Where, by common consent, a city has for many years regulated the waters of a certain stream for irrigation purposes by distributing pro rata among the appropriators, in case of deficiency it cannot subsequently divide the appropriators into two classes according as their use began before or after a certain arbitrary date, and restrict only those of the second class; but all must be served alike. Holman v. Pleasant Grove, 8 U. 78; 30 P. 72. A municipal corporation took possession and control of the waters of a certain stream with the express consent of the original locators, and held the stream more

than seven years; held, that it acquired the ownership of the water under the statute of limitations. Springville City v. Fulmer, 7 U. 450; 27 P. 577.

Water in the pipes of a distributing system is personal property. Water flowing in a natural stream or ditch is not subject to ownership so far as the corpus of the water is concerned; the right to use it is a hereditament appurtenant to the land. Bear River Irr. Co. v. Ogden City, 8 U. 494; 33 P. 135. The owners of a water ditch are entitled to have the water flow therein in its natural state, and when they claim such water by prior appropriation, its corruption by any stranger is a private nuisance. Crane v. Winsor, 2 U. 248.

The doctrine of riparian rights is not in force in

Utah so as to prevent the owner of land from diverting the waters of a stream for purposes of irrigation and domestic use. Stowell v. Johnson, 7 U. 215; 26 P. 290. Where defendant transferred a dam, canal, and right of way to plaintiff's grantor, in consideration of the right to water two hundred acres of land from such canal; held, that defendant might take the water at as many dif ferent places as necessity required; and defendant was not required to contribute to keep the canal in repair in the absence of an express agreement to do North Point Irr. Co. v. Little, 14 U. 42; 46 P. 268. Water flowing in creeks or ditches cannot be regarded and treated as surface water. Jordan v. City of Mt. Pleasant, U.; 49 P. 746.

So.

1262. Id. Must be for useful purpose. Abandonment. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest abandons or ceases to use the water for a period of seven years the right ceases; but questions of abandonment shall be questions of fact, and shall be determined as are other questions of fact. [C. L. §§ 2780*. 2783*; '97, p. 219.

Person loses right to ditch and easement for same by non-user for many years. Stalling v. Ferrin, 7 U. 477; 27 P. 686. But owner of ditch is estopped

from denying right of another who enlarges ditch and procures land expecting to use same. Lehi Irr. Co. v. Moyle, 4 U. 327; 9 P. 867.

1263. Changing use or place of diversion. The person entitled to the use of water may change the place of diversion, and may extend the ditch, flume, pipe, or aqueduct, by which the diversion is made, to any place other than where the first use was made, and may use the water for other purposes than that for which it was originally appropriated, but no person shall change the place of use of water to the damage of his co-owners in such right without just compensation. ['97. p. 220.

1264. Turning into another stream or reservoir. The water appropriated may be turned into the channel of another stream or reservoir constructed across the bed of any natural stream and mingled with its waters, and then be reclaimed; but, in reclaiming it, water already appropriated by another must not be diminished in quantity, or deteriorated in quality. [97. p. 220.

1265. Equality among appropriators according to vested rights. All persons, corporations, or associations that have appropriated any of the waters of the state for agricultural or other useful or beneficial purposes, or that may hereafter appropriate any of the waters of this state for agricultural or other useful or beneficial purposes, from any streams, springs, or lakes within the state, until all of the said waters are or shall have been diverted from the streams, springs, or lakes when at their average flow at low water mark, shall be deemed to be equal in rights to the said waters, according to their vested rights. ['97. p. 220. Existing water rights recognized and confirmed, Con. art. 17, sec. 1.

1266. Secondary rights. How acquired. A secondary right to the use of water for any useful or beneficial purpose may be appropriated subject to the perfect and complete use of all prior rights, to the extent of and reasonable necessity for such use thereof, in the manner hereinafter prescribed, under any of the following circumstances:

1. Whenever the whole of the waters of any natural stream, watercourse, lake, spring, or other natural source of supply has been taken, diverted, and used by prior appropriators for a part or parts, of each year only; and other persons shall subsequently appropriate any part, or the whole, of such water during any other part of such year, such persons shall be deemed to have acquired à secondary right.

2. Whenever, at the time of an unusual increase of water exceeding seven years' average flow of such water, at the same season of each year, all the water of such average flow then being used by prior appropriators, and other persons