¶1 (dissenting).
¶2 On February 7, 1938, William M. Brown gave unto the plaintiff a quitclaim deed for all of his right, title and interest in the property involved. In that deed he states: “The Grantor claims that an undivided one-half of the said springs, and the Pipe Line, Reservoirs two in number togather with the Lumber Cabin, which was used as a dwelling, two corréis and the fencing arround the large reservoir. Belongs to him and he *162 made it his home from the year 1915 up to the month of January, 1929, .Since which time he has used and controlled the waters and improvements every since' he left the place and had renters on the property and still claim the right to all the improvements and waters as against every one except the Government of the United States of America.”
¶3 He admitted thereby that he owned but a one-half interest. On April 21, 1938, he made application for a permit to appropriate public waters of the State of Arizona, and the Water Department, on November 1, 1938, issued a permit and a certificate of water right was issued on June 26, 1939. The application for a permit to.appropriate public waters asked for 1,000 gallons per day for domestic use and 1,800 gallons per day for stock watering purposes. Both the permit and the certificate of water right granted 300 gallons per day for domestic use and 1,500 gallons per day for stock watering purposes. On March 29, 1939, after initiating the application to appropriate water under the state law, Brown gave his second quit claim deed to Hamblin, which read, in part, as follows: “The one-half interest in.what is known as the Hod Brown, Springs, situated in House Rock Valley, Coconino County and State of Arizona, and described in that certain water certificate issued by the Permit No. A— 1184 and Application No. A — 1885, for the Hod Brown Springs described as being in the SW Section Corner of Section 13. Township 39 North, Range 3 East. G. & S. R. Meridian, more fully described as Hod Brown Spring, also the North Cliff Dweller Spring, and the South Cliff Dweller Spring, … $»
¶4 On the top of the application to appropriate water and on top of the certificate there appears a notation reading as follows: “One-half interest under this certificate of water right are assigned to Delwin F. Hamblin.”
¶5 This notation was in keeping with a notation made by the water commissioner on the back of the second quitclaim deed, the deed being dated March 29, 1939, which notation is as follows: “The foregoing assignment is hereby approved this 16 day of April, 1940. Jesse C. Wanslee, State Water Commissioner.”
¶6 -Under testimony given by the engineer for the State Land Department the assignment just referred to was transmitted to the Water Department by one of the attorneys for Mr. Hamblin on April 15, 1940.
¶7 The majority opinion herein states: “On June 26, 1939, the water commissioner issued to Brown a formal certificate' of water right, confirming his right to the water described in the application and permit.” As seen by the foregoing figures the grant of water to the applicant Brown was not the same in his certificate as it was in his application.
¶8 Further in the majority opinion it is said: “Brown, by settlement and making improvements on the public domain and in actually *163 developing and putting water to use, had an interest which was subject to conveyance.”
¶9 It is my theory of the case that Brown always recognized that others had an interest in the springs. That is shown although no new application for water to the water commissioner was ever made, by the fact that William Ford on December 20, 1915, filed the following notice with the county recorder of Coconino County, Arizona: “Notice is hereby given that I the undersigned, have posted this notice at the Cliff Dwelers Spring, situated about two and one half (21/£) miles south of the Old House Rock Spring in Coconino Co. Arizona. The water of this seep or spring is to be piped down and put into a reservoir, for stock watering purposes. Sighed: Wm. Ford”
¶10 The family of William Ford on March 14, 1942, gave unto plaintiff Royal B. Wool-ley a quitclaim deed for “all the right, title, claim and demand” which they had in the water and water rights in question. That deed was signed by Florence Monroe, formerly the widow of William Ford, and by Grayson Ford, Lowell Ford and Miles Ford, being the only heirs at law of William Ford, deceased. Also J. M. Johnson, G. W. Findlay, and Dana Findlay on February 27, 1941, quitclaimed to Woolley any interest they might have in and to the water and water rights of the springs in question. Also Charles H. Vaughn on February 14, 1942, quitclaimed to defendant Woolley any right, title and interest he had in and to the water and water rights in question. These quitclaim deeds conveyed also any interest the parties had in and to the reservoirs, troughs and other improvements. Also on October 14, 1939, William M. Brown, who had made his two quitclaim deeds to Hamblin, conveyed to Royal B. Woolley all the right, title, interest, claim and demand which he had in the property, the description therein being: “Those certain waters and water right known as Hod Brown Spring, North Cliff Dweller And South Cliff Dweller Springs, as evidenced by Certificate of Water Right, Certificate Record No. 755, issued on June 26, 1939, by the State Water Commissioner of the State of Arizona, to William M. Brown, the party of the first part; Recorded in State Record of Water Right Certificates in Volume 3, at page 755, and recorded in the office of the County Recorder of Coconino County, Arizona, in Book 5, of Millsites and Water Rights at pages 446 to 448 inclusive, and the reservoirs, pipe lines, troughs and other improvements, constructed and maintained for the diversion and use of said waters, said waters and improvements being situate in the Northwest quarter of the Southwest quarter of Section 13, and the Southeast quarter of Section 14, in Township 39 North of Range 3 East G. & S. R. M., Arizona.”
¶11 In this last deed Brown recognized his interest in the water and springs as awarded unto him by the certificate issued by the water department on June 26, 1939. This *164 deed was duly recorded in Coconino County, Ariz.
¶12 The first deed to Hamblin from Brown was never recorded and the different transactions indicate that the second deed given by him to Hamblin was to carry out and fulfill the transfer in the first deed for a one-half interest.
¶13 Hamblin must prevail on the strength of his own title, and he has not carried that burden required by law. If he owned any more than a one-half interest the records would show it.