Little Cottonwood Water Co. v. Kimball

289 P. 116, 76 Utah 243, 1930 Utah LEXIS 60

• Court: Utah Supreme Court
• Decided: March 5, 1930
• Docket: No. 4707.
• Status: Published

Opinions

CHERRY, C. J.

In 1925 appellant Kimball made an application to the state engineer, under Laws Utah 1919, c. 67, § 42, to appropriate ten second feet of water from Little Cottonwood creek, a natural stream of water in Salt Lake county, and a further application, under Laws Utah 1919, c. 67, § 9, as amended by Laws Utah 1921, c. 72, for permission to turn ten second feet of water which he proposed to bring from Utah Lake into the channel of Little Cottonwood creek and to divert an equal quantity of water from the channel at a point above. For convenience, the applications are designated “the application to appropriate” and “the application to exchange,” respectively.

The plaintiff Little Cottonwood Water Company, a prior appropriator of water of Little Cottonwood creek, filed protests with the state engineer against both applications. The protest against “the application to appropriate” was that there was no unappropriated water in the source, and “the application to exchange” was opposed because the proposed exchange would deteriorate the quality of the original water of Little Cottonwood creek. The state engineer, notwithstanding the protests, approved both applications. To review the action of the state engineer and by way of appeal the plaintiff brought this action in the district court of Salt Lake county. See Laws Utah 1919, c. 67, § 54. The district court tried the issues, made findings, and rendered a judgment that both applications be disapproved and denied. From the judgment thus rendered, the applicant, Kimball, and the state engineer have appealed. The appeal here is upon the judgment roll, which contains the pleadings, findings, and judgment, but not the evidence. It is contended by the appellants that upon the findings made both applications should be ordered approved.

We first consider “the application to appropriate.” The ultimate question is whether the order rejecting the application should be sustained upon the grounds that there is no unappropriated water in the proposed source. The statute (Laws Utah 1919, c. 67, § 48) provides:

“Where there is no unappropriated water in the proposed source of supply, or where the proposed use will conflict with prior applications or existing rights * * * it shall be the duty of the State Engineer to reject such application.”

This controversy, in the main, depends upon the interpretation and application of this provision of law.

The question is important because, on the one hand, the statute ought not to be a shield of protection to prior appropriators who divert water in excess of their reasonable necessities; and, on the other hand, the owners of genuine established rights should not be harassed and disturbed in the enjoyment of their rights by groundless claims of later applications. In the arid region water is precious, and it is the undoubted policy of the law to prevent its waste and promote its largest beneficial use. Water is a bounty of nature, and, while prior rights to its use are obtained by those who first apply it to a beneficial use, those rights are limited to the quantities reasonably necessary for the uses to which it is applied. This is a cardinal principle of law of prior appropriation. When a dispute arises between an applicant for a new appropriation and the prior appropriators as to whether there is unappropriated water in the source of supply, two questions naturally arise, viz.: (1) What is the total supply? and (2) What is the extent of existing rights ? In the case of many of the canyon streams in this state, where the volume of stream flow varies and fluctuates not only from year to year but during each year, it is a most difficult matter to determine with any degree of certainty what the future supply will be. And the determination of existing rights, in many cases, involves intricate and difficult questions of both law and fact, and is peculiarly a judicial function.

Can it be said that the Legislature intended, by the statute quoted, to vest the power to make such adjudications in the state engineer? Of course the extent of prior rights must be determined before there can be any exercise of secondary rights, but it is premature and impracticable to make such determination before any secondary claim is initiated. It is the initiation of his claim which qualifies the prospective appropriator to challenge existing claims.

The approval of an application to appropriate is only a preliminary step. It confers upon the applicant no perfected right to the use of water. It does not in any degree impair or diminish the existing rights of others. It merely clothes the applicant with authority to proceed and perfect, if he can, his proposed appropria tion by the actual diversion and application of the water claimed to a beneficial use. If in so doing he collides with conflicting claims, his standing as a prospective appropriator makes him a party in interest and qualifies him to assert his prospective right and to question conflicting claims. Unless his application has been approved, he is without interest in the subject-matter, unable to prosecute his claim or to question prior claims.

The state engineer has not the facilities to inquire into and determine the extent of existing rights, except in a very general way. Under the language of the statute it is not a prerequisite to the approval of an application that the state engineer find affirmatively that there is unappropriated water in the proposed source. The proposition is stated in the negative, and it is only when there is no unappropriated water in the source that the application is to be rejected. Since the policy of the law is to prevent waste and promote the largest beneficial use of water, new appropriations should be favored and not hindered. In a doubtful case, when the conclusion is not clear, it is more consistent with sound policy and with the general scheme of the law, to approve the application to appropriate and afford the new claimant the legal status and the opportunity to proceed in due order of law and have the disputed questions definitely and authoritatively determined, rather than to shut off such determination by the denial of his application.

These considerations support the conclusion that the only practical application of the statute quoted is to a case where it clearly appears that there is no unappropriated water in the proposed source. This would occur for example, where a general adjudication, of which notice to all persons had been given, or where perfected appropriations and prior pending applications of record in the engineer’s office, established the appropriation of all available water of the source. But if the question is fairly doubtful and there is reasonable probability that a portion of the waters are not necessary to supply existing rights the engineer should have the power to approve the application and afford the applicant the opportunity for an orderly recourse to the courts, who have the facilities and powers to dispose of the matter definitely and satisfactorily.

The decisive question on this branch of the case is whether, under the facts as found by the court, the application must necessarily be rejected.

In the application in question it was stated that the water applied for was to be stored in a reservoir each year from January 1st to December 31st and used for irrigation each year from April 1st to October 31st upon designated lands. In an explanatory note it was stated:

“The following additional facts are set forth in order to define more clearly the full purpose of the proposed appropriation :

“The water applied for under this application is to be acquired through the construction of a pipe line to supply culinary water to those dependent upon the flow of Little Cottonwood through open channels for domestic purposes. The water so saved will be stored in what is known as the Beaver Pond Reservoir during the non-irrigation season and released for use upon the land described during the irrigation season. * * *”

The findings of fact made by the district court necessary to be noticed are, in substance, as follows: That Little Cottonwood creek is a mountain stream with a volume of flow varying during each year from a monthly average of 141/2 cubic feet per second during the lowest period in January to over 250 cubic feet per second during the highest period in the month of June; that on June 16, 1910, in an action pending between Union & East Jordan Irrigation Company, plaintiff, and Richards Irrigation Company, et al., defendants, the district court of Salt Lake county made and entered a decree that certain of the defendants were the prior appropriators of and entitled to use for irrigation and domestic purposes all of the “primary water” or “nor mal flow” of the stream; that neither the applicant, Kim-ball, or the state engineer, were parties to the said decree; that, except during a comparatively short period in the months of May and June of each year, when the flow of said creek is at its peak, all of the normal flow thereof during the irrigation season has been, for many years, by means of open canals and ditches, diverted and used by plaintiff, its stockholders and others, for irrigation and domestic purposes during the period of each year from April 1 to October 15; that many of such persons also have rights to use said waters for culinary and domestic purposes during the time when the water is not used for irrigation, and that for many years such users have diverted through open ditches and canals an average of not less than fifteen second feet of water for culinary and domestic use; that the quantity of such water actually used or consumed has not exceeded one cubic foot per second, but that nevertheless, under the system of distribution through open ditches and canals, it is reasonably necessary to divert from the stream fifteen second feet of water to supply at the respective places of use the necessary quantities of water for such use; that there is no evidence to show with certainty who the prior users of water mentioned are, or what their rights are, and nothing to show the plaintiff has any right to represent them; that the applicant, Kimball, proposes to construct, at his own expense, a pipe line through which the waters of the stream may be conducted to those entitled to the use of the same for domestic and culinary use, and thereby prevent the loss of at least ten cubic feet of water per second, which quantity he seeks to make available to supply his proposed appropriation.

Upon the findings made, the district court concluded as a matter of law that none of the waters of the creek were subject to appropriation in the manner proposed by the applicant and that the state engineer acted without authority or jurisdiction in approving the application.

From the findings it is apparent that there is a substan tial quantity of unappropriated water in the source. At the highest flow in the early summer the stream has a volume of over two hundred fifty cubic feet per second. It is nowhere claimed that during this period all of the water of the stream is necessary for the use of prior appropriators. And, since the specific quantity of water claimed by prior users during any of the irrigation season is not shown, it is impossible to say that there is not an excess at other times. Any excess in the stream at any time over existing rights is open to appropriation by new claimants. For this reason alone the action of the state engineer should be approved.

But the main subject of dispute, both in the district court and here, is the novel proposal of the applicant to save the loss involved in the existing method of distributing the water for culinary and domestic use by substituting at his own expense a pipe line. The matter has been very thoroughly and ably argued. That the applicant may proceed with his plan over the objection of prior appropriators in order that water may be conserved and its use enlarged has been affirmed on one side and stoutly denied on the other. We think the issue premature. The only question proper to be considered in this action is whether the applicant shall be denied approval of his application. If he can, by agreement with the parties interested or by any other lawful means, effect the saving of a loss of ten cubic feet of water per second, he ought not to be prohibited by law from proceeding to do it. It may well be that there is no authority of law whereby he may compel existing owners of water rights to submit to his visitation and disturbance of their premises by the construction of his proposed works thereon. But that question is not presented here. The issue here to be decided is whether, if he does accomplish his design, the water so rescued from loss may be awarded to him. His appropriation is dependent upon the execution of his scheme. If he cannot carry it out, he cannot perfect his appropriation. He must meet and overcome whatever obstacles may cross his path. We may not anticipate or decide them. The inquiry-on this branch of the case ends when, from the facts found, it cannot be said that there is no unappropriated water in the proposed source. That is the situation here, and the action of the state engineer in approving the application should be sustained.

With respect to the “application to exchange,” we think the district court was right in ordering it denied.

The application was made under authority of Laws Utah 1919, c. 67 § 9, as amended by Laws Utah 1921, c. 72, which provides:

“Upon application in writing and approval of the state engineer, any appropriated water may be turned into the channel of any natural stream, * * * and commingled with its waters, and then be taken out, either above or below the point where emptied into the stream, * * * but, in so doing, the original water in such stream, * * * must not be deteriorated in quality or diminished in quantity. * * * 99

The district court found as a fact that the water proposed to be turned into Little Cottonwood creek by the applicant was inferior in quality to the water of Little Cottonwood creek, and that the commingling of such waters would render the entire stream below the point of commingling unfit for domestic and culinary uses, that the commingling water is equally as good for irrigation purposes as the waters of the original stream, and that the applicant proposed at his own expense to construct a pipe line through which he would supply all persons entitled thereto from the stream with potable water for domestic and culinary use.

The statute expressly imposes as a condition of such exchange that the waters of the original stream be not deteriorated in quality. The condition is a most important one. It concerns public as well as private interests. The scheme for supplying potable water for domestic use through a pipe line does not meet the requirements of the statute. The waters of the original stream would be deteriorated in quality, notwithstanding, in plain disregard of the statute.

For the reasons stated, the judgment of the district court directing the state engineer to reject and deny the application to appropriate is reversed and set aside, and the district court is directed to amend its conclusions of law and enter an order affirming and sustaining the approval of the application by the state engineer. The order of the district court directing the denial and rejection of the application to exchange is affirmed. No costs allowed to either party.

EPHRAIM HANSON, J., concurs.