Pool v. Utah County Light & Power Co.

105 P. 289, 36 Utah 508, 1909 Utah LEXIS 90

Opinion

FRICK, J.

This action originated in the District Court of Utah County, and involves the question as to whether the appellant or respondent has the prior right to the use of the waters of American Fork Creek, a stream flowing through Utah County. The district court found the issues in favor of respondent, and entered judgment dismissing the action; hence this appeal.

Respondent’s claim to the water arises by virtue of an application made by it under chapter 1001, page 88, Laws Utah 1903, entitled “Water Rights and Irrigation,” and appellant’s claim is based upon his application made under the same act as amended by chapter 108, page 145, Laws Utah 1905. Since the provisions of the two chapters are the same in so far as the rights of the parties to this action are concerned, we shall refer to the act of 1903 only. By this act very important changes for the appropriation and perfecting of rights to the use of public waters of this state were effected. In view that the questions presented for decision involve the construction of certain provisions contained in said act, we shall, in substance at least, set forth such parts as we deem material to a full understanding of the questions decided. Section 1 of the act creates the office of state engineer. The governor, with the approval .of the senate, is required to fill the office by appointment. In defining a part of the powers and duties of the state engineer, said section provides as follows:

“He shall have general supervision of the waters of the state and of their measurement, apportionment and appropriation. . . . He shall have power to make and publish such rules and regulations as he may deem necessary from time to time, to fully carry out the provisions of this act and secure the equitable and fair apportionment of the water according to the respective rights of apprópriators.”

- In referring to the right to acquire the use of unappropriated water, section 34 of said act provides:

“Rights to the use of any of the unappropriated water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise. The appropriation must he for some useful or beneficial purpose, and, as between appropriators, the one first in time shall he first in right.”

Section 35 provides that the application for an appropriation of water must be made to the state engineer. This section specifically prescribes how the application must be made, and what it must contain. Since there is no claim that this section was not complied with, and as it is quite long, we shall not state its contents further. Section 36 provides the duties of the state engineer with respect to the application. No contention arises under this section, nor under section 3Y, which provides that a notice of tire application shall be published by the state engineer. Section 38 provides that any interested person may “within thirty days after the completion of the publication of said notice, file with the' state engineer a written protest against the granting of said application, stating the reasons therefor, which shall he duly considered by said engineer. He may, in his discretion, hear evidence in support of or against such application, and shall take suck action thereon as he may deem proper and just.” Section 42 is as follows :

"In his indorsement of approval of any application, the state engineer shall require that actual construction" work must begin within ninety days from the date of such approval, and that the construction of the proposed irrigation works shall be completed within a period of five years from the date of such approval. He may limit the applicant to a less period for the completion of the work and the perfection of the right. The state engineer shall have authority, for good cause shown, to extend the time within which any irrigation or other works shall be completed, and the appropriation perfected.”

It is also provided in the act that in some instances the party feeling himself aggrieved may review the action of the state engineer by a direct appeal to the district court of the county wherein the water is diverted for1 use, and in other instances may bring an action in such court by which the actions taken by the state engineer may be indirectly reviewed'. The state engineer is invested with a large discretion in discharging his duties with respect to effectuating at least some of the important provisions of the act. The act is quite comprehensive, and, in general, it may be said' that its provisions may be readily understood and complied with. Yet, as we shall see, there ara some provisions which require careful consideration in order to determine their true nieaning and intent. The act, to' a large extent, seems, to be modeled after the irrigation law of Wyoming. (See chapters 10-14, inclusive, title 9, Revised Statutes Wyoming 1899.)

The questions involved in this appeal all arise under the provisions of section 42, which we have set forth in full. This section is a copy "o?section 922 of chapter 14 of title 9 of the Revised Statutes of Wyoming, aforesaid, and was originally adopted in that state in 1895. (See section 1, chapter 45, page 89, Session Laws Wyoming 18.95.) North Dakota has a. similar section. (See section 30, chapter 34, page 53, Laws North Dakota 1905.)

The facts that are deemed essential to this appeal arq substantially as follows: That on July 1, 1904, the re spondent made application to tbe state engineer, under tbe act of 1903 above referred to, “to appropriate one hundred cubic feet per second of time of tbe waters of American Fork Creek, in Utah County, State of Utah, to be diverted from said creek in Utah County, and conveyed through a pipe line to a point of use and distribution for tbe purpose of developing power to generate electricity for lighting and propelling machinery and other purposes;” that the application was approved by the state engineer on the 16th day of March, 1905, and the respondent was, by order of the state engineer, required to begin the construction of its plant and pipe line to be used in generating the power aforesaid within three months from said 16th day of March, 1905, and to complete said plant within eighteen months from the date aforesaid; that respondent - commenced work within three months from March 16, 1905; that it did not complete the construction of said plant within eighteen months from said date; and that it did not apply for nor obtain an extension of the time within which to complete said plant from the state engineer until the 23d day of October, 1906, on which day the state engineer, on the application of respondent, did make an order extending the time within which to complete said plant to the 1st day of August, 1907, and on the 10th day of July, 1907, upon the further application of respondent, the state engineer made a further order of extension to the 1st day of December, 1907; that, when the first eighteen months had expired, the respondent “was actually engaged in completing said works, and had expended $50,000 thereon, and it inadvertently failed and neglected to apply for and procure an extension of time before the time fixed expired;” that, before the expiration of the second extension, the respondent “had completed its said works at a cost of $120,000, and had completed its appropriation of said water, and was at the time this action was commenced using the said water to the extent of 5^40 cubic feet of water per second, which is all the water it can use through” the diverting system. The court also found that appellant on the 16th day of December, 1905, duly made and filed his application with the state engineer to appropriate one hundred cubie feet of water per second of time to be diverted from the same stream in Utah County; that appellant’s application was made for water to be used for purposes similar to those above enumerated; that appellant’s application was approved by the state engineer on the 6th day of September, 1906, and he was required to begin the construction of his works within six months, and to complete them within two years from said date; that no written protest was made to the state engineer against the application of appellant within thirty days or at any time; that the appellant commenced work upon the construction of his plant within six months, to-wit, on the 3d day of March, 1907, with men and teams and continued said work until the 9th day of said month, “when he was notified to cease all work on his pipe line and power site,” and he then ceased work. The reasons why and by whom appellant was notified to quit work are not important; since, if appellant can succeed in his contentions, the fact that he was prevented and the reasons that prevented him from the further prosecution of his work are not deemed material. It is also conceded that each one of the applicants made application for the full amount of water that is contained in said stream.

As conclusions of law the court, in substance, found' that the respondent “has made a valid appropriation of 50.40 eubie feet per second of time of the waters” of the stream aforesaid, “and that said appropriation is prior and superior” to appellant’s appropriation.

In our view, the material question to be determined is whether the state engineer exceeded his authority in granting the respondent the first extension of time in which to complete its plant in view of the time when and the circum: stances under which such extension was granted. Counsel for appellant most earnestly insist that at the time the state engineer granted the first extension of time he was without jurisdiction or power to do so; that his act in that regard was void and of no force or effect; that respondent’s right to tbe use of tbe water in question was not completed witbin tbe time as fixed by tbe state engineer nor witbin any authorized extension of time; and benee its right to tbe use of tbe water lapsed or has been forfeited. Upon tbe other band, respondent’s counsel, with equal earnestness, assert that tbe state engineer, by virtue of tbe statute, bad full power and authority to grant both of tbe extensions of time, .and that the application of respondent was perfected substantially in accordance with tbe laws of this state, and benee is a valid appropriation of tbe water applied for, just as tbe court found it to be. Which of these contentions shall prevail depends upon tbe true meaning and intent of tbe act referred to, and especially upon tbe construction to be given sections 1 and 42 of said chapter 100, both of which are directly involved.

By reference to section 1 of tbe act, a part of which we have quoted, it will be seen that a large discretion is vested' in tbe state engineer to tbe end that be may “fully carry out tbe provisions of this act, and secure the equitable and fair apportionment of tbe water according to tbe respective rights of appropriators.” Again, in section 38, it is provided that, in case a protest is made against any application to appropriate water, tbe engineer “shall take such action thereon [tbe application] as be may deem proper and just.” In other portions of the act equally broad discretionary powers are vested in the engineer, but subject to review by tbe district courts either by a direct appeal from tbe engineer’s orders or by an independent action like the present. Counsel for appellant further contend that “when a statute gives a new and unusual remedy, and directs bow tbe right to tbe remedy is to be acquired or enjoyed, and bow it is to be enforced, tbe act should be strictly construed; and the validity of all acts done under tbe authority of such an act will depend upon tbe compliance with its terms.” (Campbellsville Lumber Co. v. Hubbert, 112 Fed. 124, 50 C. C. A. 435.) Tbe doctrine enunciated in tbe foregoing quotation is elementary, and when a question arises under statutes which fall witbin the class defined in tbe quotation, tbe courts usually apply the doctrine there asserted with more or less strictness. This is well illustrated by Mr. Justice Lurton in the opinion quoted from above. Wo are not prepared to hold, however, that chapter 100, which is under consideration here, strictly speaking comes within the class of statutes of which Mr. Justice Lurton 1 speaks. Nor are we prepared to say that the ancient rules of strict construction with respect to any class of ■statutes should be rigidly enforced in this state. Section 2489, Comp. Laws 1907, which in construing statutes of this state is always to be considered, and whenever applicable to be heeded, provides as follows:

“The rule of common law that statutes in derogation thereof -are to he strictly construed has no application to the Revised Statutes. The Revised Statutes establish the law of this state respecting the subjects to which they relate, and their provisions and all proceédings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice. Whenever there is any variance between the rules of equity and the rules of common law, in reference to the same matter, the rules of equity shall prevail.”

In arriving at tbe true meaning of a particular section, it is not only permissible, but very often necessary, that all tbe provisions of tbe act of wbicli tbe particular section forms a part be considered, as well as tbe object or purpose of tbe lawmaking power in adopting tbe 2 entire act as passed. True it is that tbe language employed by tbe legislature must first be considered, and, if this is unambiguous and direct, it must ordinarily be given full force and effect. When, therefore, a forfeiture of a pre-existing right is claimed by reason that a particular clause or section of an entire act has not been literally complied with, and when tbe statute does not in terms or by unavoidable implication declare that the failure of a strict compliance shall work a forfeiture, tbe courts may well pause before declaring a forfeiture by reason that all tbe provisions of tbe act have not been literally complied with.

Counsel for appellant do not claim tbat section 42 in terms provides tbat, unless an extension of time is applied for of tbe state engineer before tbe time wbicb is fixed' by bim bas elapsed, be is powefless to extend tbe time thereafter, nor tbat tbe applicant by reason of bis failure to apply for an extension before tbe original time limit bas expired thereby forfeits bis right to* tbe use of tbe water applied for. But they contend tbat the question is analogous to tbe one by wbicb courts are given power to grant extensions of time for tbe settlement of bills, of exceptions, or-to file a transcript on appeal, and matters of tbat character. This court, in common with other courts, bas held tbat in case a bill of exceptions is not settled or tbe transcript is not filed within tbe time limit fixed by tbe statute, or within an extension of time wbicb was applied for before the statutory time or an extension thereof was reached, then, and in such event, tbe judge or officer authorized to settle tbe bill of exceptions or to receive and file a transcript on appeal would be without jurisdiction to do either, and tbe act of such judge ,or officer would be void, and of no effect. (Butter v. Lamson, 29 Utah 439, 82 Pac. 473; Bryant v. Kunkel, 32 Utah 377, 90 Pac. 1079; Ferree v. Walker, 54 Kan. 49, 36 Pae. 738; Swartz v. Davis, 9 Idaho 238, 74 Pac. 800; In re Clary, 112 Cal. 292, 44 Pac. 569.) TJpon tbe other band, some courts, under statutes similar to ours, have arrived at a different conclusion, and have held that, if tbe statute fixes a shorter and a longer period within wbicb an act may be done and authorizes an extension of tbe shorter period but not beyond tbe longer one provided for, then tbe judge who, by tbe statute, is authorized to grant tbe extension, may do so after as well as before tbe shorter period of time bas elapsed, provided tbe order granting the extension is made before tbe final limit bas been reached. (Greenwood v. Cobbey, 24 Neb. 648, 39 N. W. 833; McDonald v. McAllister, 32 Neb. 514, 49 N. W. 377.)

The weight of authority is, however, clearly in accordance with tbe bolding of this court as' declared in tbe cases above-cited. In our judgment, however, there is a broad distine- tion between the extension of time provided for by the statute' for the settling of a bill of exceptions and in granting an extension of time by the state engineer under the'provisions of chapter 100, aforesaid. The statute fixes a specific time in which a bill of exceptions must be settled and allowed, and, unless the statutory time is extended by the judge or court, the bill must be settled and allowed within the statutory time. Under the law in question the state engineer, however, alone fixes the time which he is given power to extend. It is true that the law fixes an ultimate limit, namely, five years, but this limit, under the law as it stood in 1903 and 1905, when the respective applications were made, the engineer was powerless to extend. Under the act in question, therefore, the engineer is not authorized to extend the fixed statutory limitation as in the case of settling a bill of exceptions, but one only that he himself has fixed.' If we bear in mind that this limit had to be fixed by him at a time when he could not foresee what obstructions might intervene and in some way retard the progress of the contemplated work, and that the limit had to be and was determined on by him alone in accordance with his judgment and discretion based upon such information as he then had, it is easy to perceive why the first limit as fixed by him was intended to be in the nature of a tentative limitation merely. This, it seems to us, becomes more apparent when we keep in mind the powers that are vested in the state engineer in fixing a time limit and in granting extensions. The purpose of vesting such powers in the state engineer seems apparent enough. The statute fixes a final limit which applies to .all applications alike. • Some applications, however, like the one in question, require a large expenditure of money and a considerable time before the appropriation can be perfected by the full completion of the contemplated works. In order, therefore, to hasten the completion of the works as fast as possible, the engineer is authorized to fix a limit much less than the statutory limit. He also is authorized to fix a limit in accordance with the magnitude of the work. This limit, in the nature of things, must be deemed to be merely provisional by both the engineer and tbe applicant.

Again, the state engineer is vested with full power to promulgate rules to the end that both public and private rights may be subserved and protected. If, therefore, he had deemed it equitable and expedient to require applicants to apply for an extension of time before the limit as fixed by him had expired, he might have done so, and, in connection therewith, have fixed a penalty for a noncompliance with such rule. He might perhaps refuse to grant an extension of time unless applied for before the first period as fixed by him had expired subject to review by the courts, but we are of the opinion that, so long as the 3 applicant continues to pursue the work he has undertaken under the application in good faith and with due diligence, the engineer is not without power to grant an extension of time if not beyond the ultimate limit fixed by the statute, although the application therefor is not made until after the time first fixed by the engineer has elapsed. Applying the foregoing doctrine to the facts of this case, there seems no escape from what the result should be. When appellant made his application, and when it was approved by the engineer, respondent, as the court found, had complied with the statute, in that it had commenced the construction of its plant within the statutory time. Further, the court found that, before the time limit fixed by the engineer had expired, respondent had expended $50,000 upon its plant, and at the time the extension was granted it was actively engaged in constructing and completing its works. It also appears from the undisputed facts that, when appellant’s application was approved, respondent’s application was in full force and effect, and that the time within which respondent might complete its plant as fixed by the engineer had not yet elapsed. Appellant thus obtained whatever rights the approval of his application gave him with full knowledge of respondent’s prior application, that it was actively engaged in carrying on the work under its application, and that the state engineer had the power, under the conditions named in the statute, to extend the time fixed by the engineer in which respondent might complete its plant and pei'fect its appropriation of the water applied for. The respondent, therefore, had not abandoned its application by ceasing work, nor had it forfeited its rights by reason of a noncompliance with any of the provisions of the statute when appellant’s application was approved; nor was this the case when the engineer extended the time to respondent. Under such circumstances, we are clearly of the opinion that the state engineer had the power to grant an extension of time to respondent.

We do not wish to be understood as holding that the state engineer may arbitrarily extend the time limits fixed by him at any time and under all circumstances. It may well be that, if an applicant has ceased work so that it may be deemed a virtual abandonment of his application, the engineer may not in effect reinstate the application after a second applicant’s rights under his application have attached, and in that way defeat the rights of the second applicant. No such case is presented, and we therefore content ourselves Avith holding that, under the facts and circumstances disclosed by the record before us, the state engineer did not exceed his power in granting the extension to respondent, although the application therefor was not made until more than thirty days after the time, as fixed by the engineer, had elapsed, and do not determine what the extent of the engineer’s powers to extend the time limit under all circumstances may be.

If we are right in the foregoing conclusions, then the court did not err in hearing the evidence with respect to the character of the work that was done and the time and amount of money expended by respondent up to the time the extensions of time were granted by the engineer of which appellant complains. Nor did the court err in its findings that the respondent commenced the construction of its plant within the time fixed by the statute. The evidence is ample to support the finding in this regard.

In view of the conclusions reached, all other questions discussed by counsel are of no importance, and hence need no further consideration.

The judgment is, therefore, affirmed, with costs to respondent.

STEA.UP, O.' J., and MeCARTY, J., concur.