The controversy here relates to the right to the use of the waters of a number of springs in Tooele county. The prayer of the complaint is that plaintiff (appellant) be decreed to be the owner of the springs and the waters arising therefrom, and that defendants (respondents) be decreed to own no rights or interests in said springs or their waters. From a judgment decreeing respondents to be entitled to the right to use the waters of certain of the springs during each irrigation season, and the right to use the waters of two additional springs for a part of each such season, this appeal is prosecuted.
The following map will enable the reader to more readily understand the trial court's findings, and will aid in explaining the questions discussed in this opinion:
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
Appellant owns and cultivates a large acreage of land lying along the western border of the map. The only water supply for irrigating its lands is the water collected from small streams having their sources in the mountains lying east of the channels constructed for the purpose of collecting the water from those streams. Respondent Hooppiania has a homestead claim, as indicated on the map. There is a general slope from the sources of the water running westward at places quite abrupt. The land lying between the foothills of the mountains and the premises irrigated by appellant is arid, and by some of the witnesses described as rocky and not suitable for cultivation. Cedar Knoll, shown on the map, is a small hill or knoll slightly higher than the land about it. The natural channel of the waters of all the creeks north of the spillway runs north of Cedar Knoll. The natural channel of the waters of the streams and springs south of the
spillway is south of the knoll. This south natural channel is designated Big Pole creek. These natural channels, prior to the construction of the artificial flumes or ditches, carried all of the waters from the watershed on the east to the lands of appellant. All of the springs in controversy, except springs No. 11 and No. 12 — designated by respondents as Holy Cross springs — are located north of Cedar Knoll and west of the north intercepting channel. All of the springs in controversy are also north of the main east and west channel or canal. This east and west channel is designated on the map as the main channel.
The findings of the court are lengthy, and we shall here state in general terms only such parts of the findings as we conceive to be necessary to explain and for an understanding of the two contested questions argued on this appeal.
The court found that appellant's predecessors in interest, long prior to 1897, actually appropriated all of the water arising from the said creeks and springs by diverting it from these natural channels (including such part of the waters of the springs in controversy as found their way into the natural channel), and used the water for irrigation, stock-watering and culinary purposes. The court further found that since the original appropriation of the waters of these various springs and streams such waters have been used by appellant and its predecessor in interest for beneficial purposes; that during the year 1908, to better conserve the water so appropriated, the predecessor of appellant commenced the construction of a system of concrete channels to intercept the waters of the creeks and springs on both the north and the south sides of the main canal, and thereby convey the said waters so intercepted and collected to and upon the land of appellant; that the said system was completed in about 1910, and as completed was composed of three principal parts, namely, the north intercepting channel, the south intercepting channel, and the main or east and west channel; that the waters from the intercepting channels ran into the main channel, and through that channel to appellant's land; that
the intercepting channels are east of and on higher ground than the springs in controversy; that the waters of the springs in controversy, with the exception of the waters from springs No. 11 and No. 12, as hereinbefore explained, have at no time been carried into the channels of the concrete system; that at no time since the completion of the concrete system have the waters of any of such springs reached, either through the concrete system or the natural channel, the land of appellant except the waters of springs No. 11 and No. 12 during the high-water season; that at the time of the construction of said canal system and prior thereto, the predecessor in interest of plaintiff had acquired a vested right to the exclusive use of the waters of the said springs and the waters running in the streams from the east; that at no time since the completion of the concrete canal system have the waters of springs numbered 1 to 10 inclusive, mentioned in the complaint, been used by the said precedessor in interest of appellant or by appellant in the irrigation of its land, or otherwise put to a beneficial use; that the waters of springs No. 11 and No. 12 were not used by appellant or its predecessor in interest for irrigation or other beneficial purpose except during the high-water season of each and every year; that after the construction of the canal system appellant and its predecessor in interest retained or had a vested right to the use of the waters of springs No. 11 and No. 12 during high-water seasons; that the concrete channels did not carry all of the waters of said creeks during parts of the high-water seasons of each year; that during the period of high water of each year after 1910 and up to the present time a large portion of the waters from said creeks, approximately one-third to one-half thereof, was turned out of the north and the south intercepting channels over a spillway located at the intersection of said north intercepting channel with the said main channel, and from said spillway such waters have been permitted to and did run into the natural channel of Big Pole creek, and through that channel were carried to the land of appellant, and during such high-water periods such waters were used for irrigation, stock-watering, and culinary
purposes by appellant and its predecessor in interest; that the high-water season extends from the middle of April to the 1st day of July of each and every year; that the waters of springs No. 11 and No. 12 have, since the year 1910, during the high-water seasons, run down the natural channel of said Big Pole creek, and, together with the waters running over the spillway, been used by appellant; that none of the waters from the other sources of supply have run down the natural channels since the construction of the canal system; that the waters collected from the other creeks have been collected by the intercepting channels, and have been permitted to run either down the concrete channel running east and west or over the spillway and down the natural channel of Big Pole creek; that the respondent Hooppiania, in the early part of March, 1918, by means of dams and ditches constructed by him, diverted and conveyed to the lands of his homestead the waters of springs No. 11 and No. 12, and thereafter, in the year 1918, except as interfered with by appellant, has diverted and carried to the lands of his homestead all the waters of said springs No. 11 and No. 12, and during the irrigation season of each year has used the same for the purpose of irrigating approximately three acres of land within his said homestead; that on or about the 16th day of April, 1918, appellant constructed a ditch by which the waters of springs No. 11 and No. 12 were diverted from the natural channel of Big Pole creek and carried into the main east and west concrete channel; that until the commencement of this action in May, 1918, the waters of said springs were intermittently diverted and conveyed by appellant into the main concrete channel, but were repeatedly turned back into the natural channel of Big Pole creek by respondent Hooppiania, and thence into his said ditch; that in the early part of March, 1918, respondent Hooppiania, by means of ditches dug by him, diverted the waters of certain other springs, enumerated in the court's findings and in the decree, and applied the same to lands within his homestead, and ever since has diverted the waters of such springs and conveyed them upon his lands during the irrigation seasons;
that on the 25th day of April, 1918, the appellant filed its application in the office of the state engineer of the state of Utah for the appropriation of the waters of the several unnamed springs or seeps, designated in plaintiff's complaint and in the court's findings, from the 1st day of January to the 31st day of December of each year, said waters to be used upon the lands of appellant hereinbefore referred to; that on the 3d day of May, 1918, and again on the 22d day of May, 1918, respondent Hooppiania filed applications in the office of the state engineer of the state of Utah to appropriate the waters of the various springs in controversy.
There are other findings, but the foregoing are sufficient, in our judgment, for an understanding of the questions determined in this opinion.
The assignments of error assail many, if not all, of the court's findings. The findings are not only supported by substantial competent evidence, but they also reflect the great weight of the evidence on controverted questions of fact. There is, however, no serious conflict on the issues which, in our judgment, must be conclusive of the rights of the parties.
It is very doubtful whether much or any of the water of the springs, other than springs No. 11 and No. 12 ever found its way into any natural channel, but it is conceded that whatever water from those springs did find its way into either of the natural channels had been appropriated and applied to a beneficial use by the predecessor in interest of appellant.
Two questions are presented and argued on this appeal: (1) Had appellant lost whatever right it or its predecessor in interest had to the use of the waters of the springs by failing to use the same from 1910 to 1918? (2) If so, was the method adopted by respondent Hooppiania to appropriate the said waters such as can be recognized and upheld by this court against the application of appellant to appropriate the waters in April, 1918?
It is strongly argued by appellant that the trial court erred in finding or concluding that there had been an abandonment of appellant's right to use the waters of the various
springs, and that there was no evidence upon which the court could make a finding that there had been an abandonment of such right. The statute of our state, Comp. Laws Utah 1917, § 3468, provides:
"When the appropriator or his successor * * * abandons or ceases to use water for a period of seven years, the right ceases, and thereupon such water reverts to the public, and may again be appropriated, as provided in this title; but questions of abandonment shall be questions of fact, and shall be determined as are other questions of fact."
By express language of the foregoing statute there are two methods or means by which one entitled to the use of waters in the state may lose such right: (1) By abandonment; and (2) by ceasing to use the same for a period of seven years. The authorities cited to the effect that time alone is not conclusive of abandonment are neither controlling nor applicable under the findings of the trial court in this case. The testimony is conclusive, and there is no substantial testimony to the contrary, that both appellant and its predecessor in interest had failed to apply any of the waters of those springs to a beneficial use, except springs No. 11 and No. 12, from 1910 to 1918.
As has been frequently stated by the courts, water is the very life blood of the agricultural and stock-raising industries of the arid west. The state is therefore vitally interested in seeing that none of the waters are allowed to run to waste or go without being applied to a beneficial use for any great number of years. The Legislature has provided that a failure to use water for seven years works a loss of the right of the former appropriator to its use, and leaves the water open to reappropriation. We need not discuss or consider the authorities cited by appellant as to the different elements that go to make up or constitute abandonment. Those authorities all agree that time is not necessarily a controlling element; that the intent of the parties should be considered, and, to a very large extent, control in determining whether or not there has been an abandonment.
In support of its argument that the evidence in this case fails to show abandonment, appellant cites two former opinions
of this court: Promontory Ranch Co. v. Argile, 28 Utah, 398,79 P. 47; Gill v. Malan, 29 Utah, 431, 82 P. 471. The court in those cases, as the opinions clearly indicate, was considering abandonment of waters and not cessation of use or forfeiture. In 1 Wiel, Water Rights in the Western States, § 576, referring to those two Utah cases, it is said:
"So far as this section [Comp. Laws Utah 1917, § 3468] has been before the court, the court has always considered it from the view of intention and abandonment, not of forfeiture."
The Supreme Court of California, in considering a statute similar to our section 3468, supra, distinguishes between nonuser and abandonment. Smith v. Hawkins, 110 Cal. 122, 42 P. 453. The same case was again before that court (120 Cal. 86,52 P. 139). A discussion of the question here under consideration will be found beginning at section 574, Wiel, supra. See, also, 2 Kinney, Irrigation and Water Rights (2d Ed.) § 1118. The facts inSmith v. Hawkins, supra, are in many respects similar to the facts in this case. The conclusion of the court was that failure to use for a period of five years loses or forfeits the prior appropriator's right to the use of the water. The statute of California does not, as does ours, specify 1
the number of years of nonuser required to work a forfeiture, but the Supreme Court of that state in the Hawkins Case determined five years, and fixed that time by analogy to the statute under which a prescriptive title is or may be acquired. Our statute fixes the time at seven years.
We are of the opinion, and so hold, that whatever right the appellant had to the use of these waters by appropriation and use prior to 1910 was lost by failure to use it for seven years.
Passing now to a consideration of the second proposition argued: It stands undisputed that appellant filed an application to appropriate the waters of these several springs in the state engineer's office on April 25, 1918. It also appears undisputed that two applications for the appropriation of the waters of the same springs were filed in the state engineer's office by respondent Hooppiania on May 3, and on May 22,
1918, respectively. The trial court found that prior to April 25, 1918, Hooppiania had, by means of canals and ditches, actually diverted the waters of springs No. 11 and No. 12 also known as Holy Cross springs, and the waters from springs No. 1, No. 2, and No. 3, also designated as Conie springs, and spring No. 7, known as Wild Rose spring, and had conveyed the waters of those springs by means of such canals and ditches to the lands of his homestead and applied the same to a beneficial use. The question is therefore clearly presented whether the actual diversion of water prior to making an application to the state engineer gives to the party making the diversion a right superior to another who first files his application in the state engineer's office.
Chapter 67, Laws Utah 1919, relates to water and water rights. The act is designated as "An act defining general provisions concerning water and water rights, the appropriation, administration," etc., and amends some prior laws. Section 41 of that chapter, so far as material here, provides:
"Rights to the use of the unappropriated public water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise." (Italics ours.)
The section further provides that the appropriation must be for a beneficial purpose, and that as between two appropriators the one first in time shall be first in right. The section following that (42) provides that any one entitled to appropriate the unappropriated public waters of the state "shall, before commencing the construction, enlargement or extension of any ditch, canal, or other distributing works, or performing similar work tending to acquire the said right of appropriation, make an application in writing to the state engineer." The language of section 41, supra, is apparently susceptible of but one construction, especially when considered in connection with the following sections of the act, and with the purpose sought to be accomplished by the legislation. It is, however, vigorously contended by counsel for appellant, as I understand their argument, that the method of appropriation prescribed by the statute is not exclusive; that the mere filing of the application in the state engineer's office
is not, in and of itself, an appropriation of water; that an appropriation of water is made by the actual diversion of the water from its natural source and its application to some beneficial use, and that when that is done there is a completed appropriation, and that until such actual application is made there is no appropriation. The court found that respondent Hooppiania had, prior to April 25, 1918, actually diverted and carried this water to his homestead and applied it to a beneficial use. It is therefore contended, based upon that finding, that the respondent is entitled to a reasonable time thereafter in which to make application to the state engineer for an order allowing or approving the appropriation theretofore made. It may be conceded, and we think no one will contend to the contrary, that the mere act of filing an 2
application in the state engineer's office is not an appropriation of water; that the appropriation is not complete until the water has been actually applied to a beneficial use. But does the fact that the actual application to a beneficial use is necessary for a completed appropriation affect or control the method or means by which such appropriation is initiated? That is what we are required to determine in this case in view of the language of section 41 herein quoted.
In the early settlement of Utah the same policy or rule of law applied to the appropriation of the public waters as prevailed in other arid states, namely, first in time, first in right. The first Utah legislative act, so far as I have been able to ascertain, respecting the method or mode of appropriating water, was passed by the Legislature of 1897 (Laws 1897, c. 52). Prior to that legislation there had been some acts requiring that notices be recorded in the several county recorders' offices of appropriations actually made. These recording acts did not, however, undertake to point out any particular mode of making the appropriations. By the act of 1897 any person desiring thereafter to appropriate water was required to post notices in writing in two conspicuous places, one at the post office nearest the point of intended diversion, and the other at the point of intended diversion. The statute further provided certain things to be stated in
those posted notices, and also provided for the recording of the notices of appropriation, and specified certain additional facts to be stated in the recorded notices. Apparently no other or further legislation was enacted respecting the appropriation of water until 1903. (Laws 1903, c. 100.) The Legislature in that year incorporated in the act relating to water rights and irrigation section 41 as the same appears in chapter 67, Laws Utah 1919. Numerous amendments were made to the irrigation laws of this state by the Legislatures meeting since 1903, but in none of such legislation has the method or manner of appropriating water as prescribed by the Legislature of 1903 been changed or modified.
The states of Wyoming, Idaho, and Montana have enacted legislation respecting the manner of appropriating the public waters of those states. Idaho and Wyoming and possibly Montana, formerly had statutes similar to our act of 1897. There is later legislation in each of those states respecting the method of appropriating water. The Supreme Court of Wyoming and the Supreme Court of Idaho have held, both under the former and present statutes of those states, that the method prescribed is not exclusive, that the appropriation of the water for a beneficial use by actually diverting and applying it to such use is a completed appropriation, and, as such, constitutes a valid appropriation as against one filing an application subsequent to the date of the completed appropriation. Pyke v. Burnside,8 Idaho 487, 69 P. 477; Furey v. Taylor, 22 Idaho, 605,127 P. 676; Whalon v. North Platte, etc., Co., 11 Wyo. 313,71 P. 995; Nielson v. Parker, 19 Idaho, 727, 115 P. 488; IdahoPower Tr. Co. v. Stephenson, 16 Idaho, 418, 101 P. 821. The trial court in this case relied upon those decisions in concluding that respondent Hooppiania had, by actually diverting the waters of the springs and applying the same to a beneficial use, acquired a right that could not be disturbed by any one filing an application in the state engineer's office subsequent to the date of the actual appropriation, provided Hooppiania proceeded within a reasonable
time to perfect his appropriation by making an application to the state engineer.
The same rule or practice that existed in Utah relative to the appropriation of any of the public waters of the state prior to legislative enactment prevailed in our sister states of Idaho and Wyoming. In the absence of legislation, that method of acquiring water rights still prevails in the arid states. The language of the statutes of Idaho and Wyoming does not expressly or by necessary implication abolish the old recognized means of appropriating water. The language of the Utah statute is that "rights to the use of the unappropriated public 3
water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise." Laws 1919, c. 67, § 41. If our statute did not contain the words "and not otherwise," then the decisions of the appellate courts of Idaho and Wyoming ought to and would have much weight in a determination of the question now under consideration.
It is a matter of common knowledge in this state that many controversies arose between claimants and much litigation resulted prior to our legislative act of 1903 respecting the dates of the appropriation by different claimants of the waters of the state. Very much of that litigation 4
had to do exclusively with the dates of the appropriations. The rule or principle of law that he who was first in time was first in right had become permanently established in the jurisprudence of the state. The fact as to who was a prior appropriator was in much, if not all, of the litigation a controverted question, and one which in many cases was most difficult to determine by reason of there being no public record of just when such appropriations were made. It is therefore not only reasonable and fair to conclude, but affords a strong argument to support the claim, that the language found in the act of 1903 was intended to mean and does mean that the only method to be recognized thereafter was the method therein prescribed.
The method or mode prescribed by the statute in the state
of Wyoming is found in Comp. Stat. Wyo. 1920, § 835; in Idaho, 2 Idaho Comp. Stat. 1920, § 5568.
We are of the opinion, and so hold, that the Legislature of Utah, by the act of 1903, intended to limit the method of acquiring any rights to the unappropriated public waters of the state to the method or means prescribed in that act. The rights attempted to be acquired by respondent Hooppiania by actually diverting the water and applying the same to a beneficial use must therefore be held to be subject to the right of appellant who will acquire the first right by completing its appropriation initiated by its application filed in the state engineer's office on April 25, 1918.
It does not satisfactorily appear in this record that all or any of the springs in controversy were, at the time of the filing of the application by appellant, located upon public domain. True it is that the court in its conclusions of law finds that the waters of these springs were then public waters upon the public domain. Whether the springs were at that time located upon public domain is a question of fact to be found, and not a conclusion of law to be drawn. The maps introduced as exhibits indicate that at least springs No. 1, No. 2, No. 3, and No. 7 are located upon the homestead of respondent Hooppiania. If so, they were not upon the public domain. We do not find any conclusive evidence in the record as to whether or not the lands upon which these springs are located were part of the public domain at the time of the attempted appropriation. The waters from the springs in controversy were not sufficient in volume to run into or create a natural channel, and were not sufficient in volume to run to appellant's land, and would not reach appellant's land without being fed by water from other sources. The waters of the springs are therefore percolating waters, and if such springs are located upon private lands the waters arising 5
therefrom are not subject to appropriation. Stookey v.Green, 53 Utah, 311, 178 P. 586; Peterson v. Eureka Hill M. Co.,53 Utah, 70, 176 P. 729; Willow Creek Irr. Co. v. Michaelson,21 Utah, 248, 60 P. 943, 51 L.R.A. 280, 81 Am. St. Rep. 687. Such of the springs as are located
upon the homestead of Hooppiania are not upon the public domain, and are therefore not subject to appropriation by appellant.
Respondents have filed cross-assignments of error, and complain of the court's judgment wherein the waters of springs No. 11 and No. 12 were awarded to appellant during the flood-water season. What has been said in the discussion of appellant's assignments is conclusive in regard to respondents' right to the use of the waters of those two springs.
The cause is remanded to the district court with directions to ascertain whether any or all of the various springs were, in April. 1918, located upon public domain, and, having ascertained that matter, to enter a decree in conformity with the views herein expressed.
CHERRY, J., concurs.