Current Creek Irrigation Co. v. Andrews

344 P.2d 528, 9 Utah 2d 324, 1959 Utah LEXIS 241

• Court: Utah Supreme Court
• Decided: October 1, 1959
• Docket: 8745
• Status: Published

Opinions

WADE, Justice.

Three cases are consolidated involving claims to water rights in various wells and springs in an underground water basin near Mona, Juab County, Utah. It is unnecessary at this point to detail the claims and counterclaims, appeals and cross-appeals. The position of the parties on the issues involved will be apparent. We group them according to their interests, and refer to them as Andrews (Orville Andrews, et al.), Fowkes (Gerald Fowkes, et al.), Current Creek Co. (Current Creek Irrigation Co.), and the State Engineer.

The central problem is whether prior appropriators of water from an underground basin, who receive it by means of flowing wells and springs, have a vested right to continue receiving water by artesian pressure; and whether subsequent appropriators, whose withdrawals of water lower the water table and reduce the flow of prior wells, must restore the pressure or bear the expense of replacing the water of prior appropriators.

All of the wells and springs belonging to the parties are on a single broad alluvial fan, which slopes westward from the Wasatch Mountains, in north Juab Valley. The valley is bounded on the east by those high and rugged mountains, including Mount Nebo, which dominates the area from its 12,000 foot height, and on the west by a lower range referred to as the West Mountains; it is closed at the south end by the Levan Ridge and on the north by a natural ridge.

The alluvial fan on the east side of the valley is built of sands and gravels which have been carried from the mountains by streams and water drainage over many thousands of years; and similar materials deposited there by the currents of Lake Bonneville, which covered the valley at one time. These relatively loose materials become saturated as moisture seeps into the ground from the heavy snow and rainfall in the mountains, and readily carry the moisture beneath the surface downward toward the water basin in the center of the valley. These strata and the basin itself are the sources of the waters with which we are concerned.

Fowkes are owners of 11 artesian wells and one spring which are located well up eastward on the alluvial fan and toward its northern part: the use is for domestic purposes and for irrigation of approximately 115 acres of land. Their rights rest upon claims filed in the State Engineer’s office ranging in priority from 1902 to 1922. In addition thereto, Fowkes claim the right to water from springs and seeps or subirri-gation of certain lower pasture lands, which use antedates the Water Filing Act of 1903.

Andrews are the owners of a spring and five flowing wells located roughly one-half mile southeast of the Fowkes wells and therefore higher on the fan, which are used to irrigate about 150 acres of land. They date to 1915 or before but are later in priority than the Fowkes wells. Andrews also own the right to use water from a number of seeps and springs which irrigate meadow land and which also have been so used since before 1903. They have further initiated a claim as of March 14, 1950, for a pump well which produces six second feet of water. This was by application to the State Engineer and use is permitted only during the irrigation season.

Current Creek Company’s main water source is known as Mona Reservoir, which lies at the center of the -valley near its north end. The water is transported about 12 miles to the south for irrigation. The company has also initiated a claim to appropriate 18 second feet of underground water to be pumped from three wells near the reservoir to augment its supply. However, when these wells were drilled they did not produce the anticipated flow, and Current Creek applied for and received approval from the State Engineer to change the location of these wells eastward and higher up on the fan, and to add two additional wells. Thereafter Current Creek contracted with Andrews to permit the drilling of two wells on the latter’s property. The new wells produced a better flow of water. The priority date of application for these wells is 1951, although they were not drilled until 1954. They flow by natural pressure about 2.74 second feet of water and are allowed- to flow during the entire year for storage’in the Mona Reservoir.

This basin upon which all of the wells are situated is classified as a sensitive “cone of influence,” because the wells readily affect each other. That is, when the Andrews’ pump well is started, the water level drops and the pressure ceases in Andrews’ other wells, and in the wells owned by Fowkes; when the pump well is turned off the level pressure rises in the others. Opening and closing the Current Creek Company’s wells has the same, although somewhat less, effect. The evidence indicates that the hydrostatic pressure in the Fowkes’ and Andrews’ flowing wells decreased from about 11 feet above, ground in the beginning of 1953 to about 8.5 feet below ground in October, 1956. During the summer of 1956, studies by the State Engineer and the U. S. Geological Survey showed that operation of the Current Creek Company’s wells diminished the flow of other wells in the area.

When the operation of the Current Creek wells resulted in stopping the flow in the Fowkes’ and Andrews’ flowing wells, which had never occurred before, Andrews closed the Current Creek wells on their land and insisted that they be kept closed or damages paid. This is in accordance with Andrews’ contention as to the terms of their contract. Current Creek’s rejoinder is that it was not their wells, but Andrews’ own pump well that depleted the Andrews’ and Fowkes’ flowing wells, and they also assert that Andrews and Fowkes have no absolute rights to artesian pressure, but must use reasonable means and pumping equipment to get their water.

The summation of the various charges and countercharges the parties make against each other is that each insists upon, and seeks to have declared, its absolute rights to obtain the water it claims, without interference from the other, and asks injunc-tive relief to protect such claimed rights. Attack is also made upon the action of the State Engineer in allowing Current Creek to change locations of its wells which was done over the protest of both Andrews and Fowkes.

The trial court found that the relative time priorities of the parties to the water in the basin were: (1) springs owned by Andrews and Fowkes, (2) the flowing wells of Andrews and Fowkes, (3) the Andrews’ pump well, and (4) the Current Creek Company wells. It declined to determine priority as to the other water sources, including a railroad well, and certain seeps in the lower valley; and we think correctly so because the evidence with respect thereto was inconclusive. The court found that there is unappropriated water within the basin and therefore affirmed the State Engineer’s approval of the change of location of the wells of Current Creek Company; as to Andrews’ act in closing the Current Creek wells, it issued a decree enjoining them from interfering therewith, based upon the fact that matters as to administration and distribution of water are by statute vested in the State Engineer.

The court further found that the pump wells of both Andrews and Current Creek interfered with the flow of the flowing wells of Andrews and Fowkes. As to Andrews, it refused to find that the interference in their flow well was caused by the Current Creek wells, as distinguished from the effect caused by their own pump well, and therefore refused to allow them any redress. The decree required Andrews and Current Creek Company to replace for Fowkes 1.775 second feet of water during the irrigation season and 27.11 gallons of water per minute during the nonirrigation season to be supplied by furnishing and installing pumps and sources of power, the cost to be shared equally between them. It further prohibited Andrews and Current Creek from using their pump wells and required them to desist from pumping water until and unless they replaced the water to Fowkes as just stated. The court, however, refused to grant damages to Fowkes on the ground that they failed to prove damages and failed to mitigate any damage that might have inured to them.

Prior appropriators of this underground water who have beneficially used it through the natural flow of springs or artesian wells are entitled to have the subsequent appropriators restrained from drawing the water out of and lowering the static head pressure of this underground basin unless they replace the quantity and quality of the water by pumping or other means to the prior appropriators at the sole cost of the subsequent appropriators. The same rule should apply to all junior appropriators present and future. They can appropriate water to a beneficial use from the underground basin if it is available but they must replace the flow of the wells and springs at the prior appropriator’s place of diversion solely at their own cost.¹ Although, as usual in such cases, the facts are very complicated, the effect of the judgment is in accordance with the above statements of the law and such judgment is affirmed.

There can be no doubt that the above is a correct statement of the rules governing this situation. Section 73-3-23, U.C.A.1953, expressly grants the right of replacement to any junior appropriator whose appropriation diminishes the quantity or quality of previously appropriated underground water at the sole cost or expense of the junior appropriator. The wording of this statute is clear, unambiguous and positive. This court has the highest duty to enforce it and not repeal it by judicial legislation. This section was added by the 1935 Legislature with other sections in order to adapt the law to the new concepts that underground waters are subject to appropriation in accordance with the then very recent decisions of Wrathall v. Johnson and Justesen v. Olsen.² There can be no doubt that the legislature and this court intended to protect the rights of the prior appropriators, and that both those decisions and this legislation were arrived at and enacted for that purpose.

The doctrine that underground basins of water could be appropriated through artificial flowing wells was first recognized in the Wrathall and Justesen decisions in 1935. But long prior thereto, by an unbroken line of decisions, this court had established that water which escaped by natural means from an underground basin was subject to appropriation, and that the rights of a prior appropriator would be protected against a junior appropriator who by means of wells or tunnels lowered the static head pressure, or by other means prevented the natural flow of the underground basin waters to the surface at the diverting works of the prior appropriator.³ This was the main basis of the opinion of Judge Bates who wrote the main opinion in the Justesen. case. Here part of the water from the underground basin came to the surface by means of natural springs and seeps. As to such waters this court has always protected the rights of the prior appropriators to the static head pressure.

Prior to 1935 we held that percolating waters are a part of the soil and not subject to appropriation,⁴ and that underground artesian basins are percolating waters. Still all of our decisions have protected the rights to have the static head pressure maintained. We have consistently enjoined the lowering of the static head pressure which had the effect of preventing a prior user from continuing a beneficial use of underground waters. This was just as true in Horne v. Utah Oil Refining Co. and Glover v. Utah Oil Refining Co.,⁵ wherein we applied the correlative rights doctrine, as in the Wrathall and Justesen cases,⁶ where we applied the right to appropriate theory. It was also equally true in the cases where the water escaped from the underground basin by springs, seepage or other natural means.⁷ Obviously the correlative rights doctrine was made use of to protect prior rights to pressure while giving lip service to the theory that percolating waters are a part of the soil. So in all of these cases, including Hanson v. Salt Lake City,⁸ 1949, we recognized the right to static head pressure. We have found no case in this state involving this question where the court has failed to approve the doctrine that the static head pressure of a prior appropriator should he protected. This seems to have been universally recognized in other states.⁹

There are a number of reasons why we should not discard the right of static head pressure in favor of Current Creek. There was evidence that about 52% of the water which flows from its wells is wasted by evaporation, transpiration and seepage. Although this evidence was stricken it was material on the claim advanced by Current 'Creek that the doctrine of maintaining static head pressure should be abandoned because it is claimed that much more underground water will be beneficially used if each appropriator has to bring his own water to the surface at his own expense. If we are to consider that question, then the facts as they exist in this case as to the percentage of water wasted by Current Creek should be considered. This evidence is more pertinent to this question than the hypothetical case of what may happen in Milford if we do not abandon the doctrine that if a junior appropriator lowers the static head pressure and thereby deprives a prior appropriator of his underground flow, the junior appropriator must replace such water at his own expense.

In the hypothetical Milford case we are told that 40,000 acre feet of water is being pumped to the surface annually with a static head pressure sometimes as low as 500 feet below the ground surface. It is also claimed that this amount of water is being safely replaced in the basin from year to year. It is further contended that only a small portion of this 40,000 acre feet now being beneficially used could have been so used had the doctrine that the junior appropriator must replace the water of prior appropriated been applied to the development of that basin for the cost would become prohibitive if the junior appropriator only lowered the static head pressure a few inches. On the other hand, if each appropriator has to lift his own water to the surface, more water may be beneficially used. No explanation is made of how this underground basin has been developed under our present system. Maybe such explanation would point to the solution of our problem.

The facts of our present case do not indicate that less water will be beneficially used if we continue to follow the right to static head pressure theory. Before the static head pressure was lowered Fowkes received their water without pumping. Now Current Creek gets more water than Fowkes claims from a lower elevation without pumping. There is no reason to believe that the cost of replacement to Current Creek will be prohibitive but that the cost of pumping to Fowkes will be otherwise. So far as this case is concerned, we have the choice between protecting a junior or senior appropriator with nothing whatever to indicate that more water will be beneficially used one way or the other. It would be a mistake to change an age-old system merely in the hope that in some future case more water may be used beneficially under a different system. This court should not completely change the law and ignore an express statute without a showing that such change would cause more water to be beneficially used.

A system which will utilize all of our water resources can be developed by the use of reclamation projects, water conservancy districts and the rights of eminent domain. Further legislation may aid in implementing these remedies. We should avoid another violent change in our concept of the right of priority in the use of our underground waters without any showing that our present system is inadequate for a full development of our natural resources.

We are not impressed that there is any basis for disturbing any of the findings of fact by the trial court and the various contentions in that regard are rejected.

Assuming that it is deemed proper that Andrews and Current Creek should maintain the flow of water for Fowkes as decreed, without detailing the evidence, there is a reasonable basis therein for the determination made that they should share equally in such expense.

As to the claims for damages, the burden of proof was upon the claimants, and upon the basis of the record we cannot say that the proof was such as to compel awards for damages so claimed, and in such respects the judgment is affirmed.

Judgment affirmed. Costs co respondents.

McDonough, j., concurs.

1 . For the history of the law on this subject see Hanson v. Salt Lake City, 1949, 115 Utah 404, 205 P.2d 255.

2 . Wrathall v. Johnson, 1935, 86 Utah 50, 40 P.2d 755; Justesen v. Olsen, 1935, 86 Utah 158, 40 P.2d 802.

3 . Sullivan v. Northern Spy Min. Co., 1895, 11 Utah 438, 40 P. 709, 3 L.R.A. 186; Herriman Irr. Co. v. Keel, 1902, 25 Utah 96, 69 P. 719; Bastian v. Nebeker, 1917, 49 Utah 390, 163 P. 1092; Peterson v. Lund, 1920, 57 Utah 162, 193 P. 1087; Peterson v. Wood, 1928, 71 Utah 77, 262 P. 828.

4 . Crescent Min. Co. v. Silver King Min. Co., 1898, 17 Utah 444, 54 P. 244, 70 Am.St.Rep. 810; Willow Creek Irrigation Co. v. Michaelson, 1900, 21 Utah 248, 60 P. 943, 51 L.R.A. 280, 81 Am.St.Rep. 687.

5 . Horne v. Utah Oil Refining Co., 1921, 59 Utah 279, 202 P. 815, 31 A.L.R. 883; Glover v. Utah Oil Refining Co., 1923, 62 Utah 174, 218 P. 955, 31 A.L.R. 900.

6 . See Note 2 above.

7 . See Note 3 above.

8 . Hanson v. Salt Lake City, 1949, 115 Utah 404, 205 P.2d 255.

9 . Pima Farms Co. v. Proctor, 1926, 30 Ariz. 96, 245 P. 369; Noh v. Stoner, 1933, 53 Idaho 651, 26 P.2d 1112; City of Lodi v. East Bay Municipal Utility District, 1936, 7 Cal.2d 316, 60 P.2d 439; Faden v. Hubbell, 1933, 93 Colo. 358, 28 P.2d 247; Karl F. Hehl Engineering Co., Inc. v. Hubbell, 1955, 132 Colo. 96, 285 P.2d 593; State ex rel. Crowley v. District Court, 1939, 108 Mont. 89, 88 P.2d 23, 121 A.L.R. 1031. The last three cases cited above deal with lowering the waters of a stream and are somewhat similar to Salt Lake City v. Gardner, 39 Utah 30, 114 P. 147. They are in line with our recent case of Kano v. Arcon Corporation, 1958, 7 Utah 2d 431, 326 P.2d 719, where we awarded damages for lowering the point of diversion of a prior appropriator.