Tanner v. Bacon, State Engineer

136 P.2d 957, 103 Utah 494, 1943 Utah LEXIS 124

• Court: Utah Supreme Court
• Decided: April 29, 1943
• Docket: No. 6205.
• Status: Published

Opinions

WADE, Justice.

This is an appeal by Caleb Tanner, plaintiff on the judgment roll from a judgment of the District Court, in an action to review the decision of the State Engineer rejecting the application of the plaintiff to appropriate waters in the Provo River for power purposes. The application was filed in the office of the State Engineer on February 28, 1925, for the appropriation of 100 c. f. s. of the waters of the Provo River, to be diverted into the Provo Bench Canal and conveyed therein about 10,300 feet to a power plant. On December 31, 1925, the State Engineer rejected this application on the ground that the Governor had withdrawn those waters from appropriation. To review that decision plaintiff brought an action in the District Court. That court held the Governor’s proclamation was void, and ordered the application reinstated with its original priority. The State Engineer received many protests against the approval of plaintiff’s application. After the application was reinstated a hearing of these protests was held and the State Engineer again rejected plaintiff’s application upon the grounds that its approval would be detrimental to the public welfare. To review this decision Tanner brought this action in the District Court. All of the protestants and the State Engineer were made defendants, and the Provo Water Users’ Association, after its incorporation, intervened. The District Court again ordered the plaintiff’s application reinstated, but decreed it to be subsequent to (a) all prior rights and all prior applications, (b) to the rights of the defendant Provo City under its applications, a part of which were filed subsequent to plaintiff’s application, and (c) to the rights of the United States and the intervenor, Provo Water Users’ Association in the development of the Deer Creek Project, both as to the reservoir now contemplated and future units which might be constructed. Tanner has prosecuted this appeal from that judgment. Since this appeal was taken Provo City has purchased Tanner’s rights, thus eliminating any question as between those parties.

Plaintiff contends that the judgment of the District Court in the first action on his application is res adjudicata in his favor in this action. He argues that if the States Engineer can, after being reversed by the District Court, again reject the same application on other grounds, there will be no end of litigation. The plaintiff Tanner and the State Engineer were the only parties to the former action. The rights of the defendants who are here protesting plaintiff’s application were not involved in that action. The State Engineer did not represent the interests of the defendants, nor of the Provo River Water Users’ Association, the in-tervenor in this action. In that action the application was rejected upon the grounds that the water had been withdrawn from appropriation. The State Engineer was alone interested in that ground, in this action he has disclaimed any interest in the result of this action. The defendants and the intervenor are the interested parties in this action.

It is well settled that the doctrine of res adjudicata does not operate to affect strangers to a judgment; that it only affects the parties and their successors in interest, and those who are in privity with a party thereto. 30 Am. Jur. 951, Sec. 220; 34 C. J. 756 to 758, Sec. 1165; Glen Allen Mining Co. v. Park Galena Mining Co., 77 Utah 362, at 367, 296 P. 231; State Bank of Sevier County v. American Cement & Plaster Co., 80 Utah 250, 10 P. 2d 1065; Tintic Indian Chief Mining & Milling Co. v. Clyde, 79 Utah 337, 10 P. 2d 932; Taylor v. Barker, 70 Utah 534, 262 P. 266, 55 A. L. R. 1032; Mill v. Brown, 31 Utah 473, 88 P. 609; 120 Am. St. Rep. 935. This court has defined the word “privity” as a “mutual or successive relationship to the same right or property. As applied to judgments or decrees of courts, the word means one whose interest has been legally represented at the time.” Glen Allen Mining Co. v. Park Galena Mining Company, supra [77 Utah 362, 296 P. 233]. The State Engineer did not represent the interest of these defendants and the intervenor and therefore this action is not barred by the former action.

Plaintiff concedes that the rights which he may acquire under his application are subject to all the vested rights of prior appropriators, and all the rights which may be acquired under applications filed prior to his. He also concedes that he can acquire no rights under his application to the use of the waters which may be brought from the Weber and Duchesne river systems. Such waters having been appropriated and reduced to possession and ceased to be public waters and are not subject to appropriation.

The court found that the Utah Power and Light Company on December 10th, 1935, filed with the State Engineer’s office an application to appropriate 200 c. f. s. of the waters of the Provo River to be used for boiler condensing purposes. The diversion point in that application and in plaintiff’s application were approximately the same. That application was not protested, and was approved by the State Engineer on April 28,1936. The State Engineer may not arbitrarily reject one application and approve another one for the same thing, even though the latter is not protested. The District Court, however, directed the State Engineer to approve plaintiff’s application without making it subject to the application of the Utah Power and Light Company so plaintiff cannot complain.

We a,re not here called upon to determine what rights have been established under these applications, but only whether plaintiff’s application should be approved, and the priority of the rights which he may acquire thereunder. Eardley v. Terry, 94 Utah 367, 77 P. 2d 362. Sec. 48, Chap. 67, Session Laws of Utah 1919, under which plaintiff’s application was filed, which as amended is now Sec. 100-3-8, Utah Code Anno. 1943, merely provided for the State Engineer to approve or reject applications, It does not expressly provide for the approval subject to limitations as the court did in this case. Plaintiff has made no objection on this ground. Other states have held under statutes similar to ours that an application may be approved subject to limitations. Kirk v. State Board of Irrigation, 1912, 90 Neb. 627, 134 N. W. 167; East Bay Municipal District v. Department of Public Works, 1934, 1 Cal. 2d 476, 35 P. 2d 1027; Young & Norton v. Hinderlider, 15 N. M. 666, 110 P. 1045.

Plaintiff filed his application with the State Engineer on February 28, 1925. Prior thereto, in 1921, the legislature created the Water Storage Commission. In 1922, that commission contracted with the United States Bureau of Reclamation for the planning and the investigation of the possi bilities of storing the waters of the Weber, Duchesne and Provo River systems. Such investigations and plans were commenced immediately and have continued up to the time of the commencement of this action, and at the time that plaintiff’s application was filed the State of Utah had spent more than $25,000 thereon. As a result thereof a reclamation project was formed for the purpose of bringing the unappropriated waters of the Weber and Duchesne rivers river systems into the Provo river system, and the construction thereon of a large storage reservoir to be known as the Deer Creek Project. It was planned tha,t the waters so stored would be used to supplement the supply for domestic and culinary purposes for many cities and towns in Summit, Utah and Salt Lake Counties, and also supplement the supply for irrigation and industrial purposes in those counties. Pursuant to these plans, in 1924, the State of Utah filed numerous applications to appropriate the above mentioned waters. Later these applications were assigned to the United States.

On May 2, 1935, the Provo Eiver Water Users’ Association was incorporated under the laws of this state, to act as intermediary between the United States and the prospective consumers of the waters to be stored in the Deer Creek Project. On June 27, 1936, this association entered into a contract with the United States, whereby it agreed to pay the costs of the construction of this project and in consideration therefor was to receive the permanent right to the use of the waters made available by the project. The United States, however, was under no obligation to construct the project until arrangements had been made for the annual storage of a satisfactory amount of water, and for an exchange of water with the prior appropriates of the waters of both the Weber and Provo rivers for power purposes, so that the flood waters of both these river systems might be stored in this project and used for power purposes only when it could be used also for consumptive purposes.

The trial court in addition, to finding the foregoing facts also found: that the plaintiff’s proposed use of the waters may interfere with the more beneficial use of such waters for domestic, culinary and irrigation purposes, and for the generation of electric power, and with its fluctuation of the flow of these waters, as required by the arrangements with the owners of the power rights, and decreed as follows:

“(b) That plaintiff’s rights under the Application shall also be subject, and subordinate and inferior to the rights of the United States and the Provo Water River Users’ Association, their successors and assigns, to divert, change the place of diversion of, impound, store, exchange, fluctuate, and use for domestic, culinary, stockwatering, irrigation, power and other purposes, the waters of the Provo River and its tributaries, and the waters of the Weber and Duchesne rivers and their tributaries in connection with the Deer Creek reclamation project including the reservoir now contemplated and future units or reservoirs which may hereafter be constructed for storage, diversion or use of waters of the Provo river and/or its tributaries in connection with or as a part of said project.”

In its Findings of Fact the trial court found that the rights of the United States and the Provo River Water Users’ Association, which it decreed to be prior to plaintiff’s rights, are based upon and may be acquired under applications which it expressly found had been filed with the office of the State Engineer. It expressly found the number of each of such applications, together with the date of filing, and a description of the waters proposed to be appropriated thereunder. Thus it is apparent that the trial court intended to limit the rights which it held to be prior and superior to the rights of the plaintiff, to such rights as may be acquired under the applications which it expressly found had been filed. The court made no findings of fact which would justify a decision that plaintiff’s rights are subject to any other rights, and so any decision to that effect would not be justified hy the facts found and would be void. We therefore hold that as to the rights determined under this decree, plaintiff’s rights are subject only to such rights as may be acquired under the applications which the court expressly found had been filed prior to the time of the trial. As to all other rights plaintiff’s priority shall date from the filing of his application.

Other than applications to appropriate the waters from the Weber and Duchesne river systems, there is only one application found by the court to have been filed, and upon which the United States and the Provo River Water Users’ Association base their claims, which was filed subsequent to plaintiff’s application. Our problem in this case deals with that application alone. As found by the trial court the description of that application is in part as follows:

“Application No. 12,144 — dated April 3, 1936, covering an exchange of water between the Deer Creek division of the Provo River Project and the interest of Utah Lake, whereby Provo river water, up to 30,000 acre feet annually, may be stored in the Deer Creek Reservoir in lieu of certain seepage return flow and/or other waters belonging to the United States which will flow into and augment the water supply of Utah Lake as a result of the construction and operation of the Deer Creek Reservoir * *

By this application it is proposed to store annually in the Deer Creek Reservoir 30,000 acre feet of the flood waters of Provo river, which has been appropriated to a beneficial use after it reaches Utah Lake. It being anticipated that the construction and operation of the Deer Creek reservoir will cause sufficient water to reach Utah Lake by seepage and return flow, to satisfy the demands of the prior appropriators of such waters. The storing of these flood waters might interfere with the use which plaintiff proposes to make of the unappropriated waters of Provo river. This presents the proposition of whether the court erred in holding that the rights which plaintiff may acquire under his application are subject to the rights which the United States and the Provo Water Users’ Association may acquire under application 12,144 above described, which was filed subsequent to the plaintiff’s application.

The District Court’s decision is not contrary to the doctrine of priorities. Counsel argues that under that doctrine, every person who applies to appropriate unappropriated waters of this state has an unqualified right to have such application approved. This is not the law. Sec. 10, Chap. 7, Laws of Utah 1919, which contains the law on that subject which was in effect at the time plaintiff’s application was filed (now 100-3-21, Utah Code Anno. 1943), applies only to vested rights, and not to the right to appropriate water in the future. The law which governed the right to make future appropriations when plaintiff filed his application is Sec. 48, Chap. 67, Laws of Utah for 1919, (as amended is now 100-3-8, U. C. A. 1943), which 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, or where the approval of such application would in the opinion of the State Engineer interfere with the more beneficial use for irrigation, domestic or culinary purposes, stock watering, power or mining development, manufacturing, or would prove detrimental to the public welfare, it shall be the duty of the State Engineer to reject such application.” (Italics added.)

Where the approval of the application would, in his opinion, interfere with the more beneficial use for any of the purposes mentioned, or would prove detrimental to the public welfare, the State Engineer is directed to reject the same. In 1903, when the legislature created the office of the State Engineer, and provided for the filing of applications to appropriate water, he was directed to reject any application which “threatens to prove detrimental to the public interest,” Sec. 40, Chap. 100, Laws of Utah 1903. This provision was omitted in the amendment of 1905, Sec. 39, Chap. 108, Laws of Utah 1905. In 1911 this section was again amended and it contains a provision similar to the 1919 law, Sec. 1288x10, Chap. 103, Laws of Utah 1911. Since then our law has contained a similar provision. Thus our statute expressly provides that the State Engineer shall reject applications under specified conditions, in the interest of the public welfare, even though all of the waters of the stream covered by the application have not been appropriated.

Sec. 1, Chap. 67, Laws of Utah 1919 (which as amended is now 100-1-1, U. C. A. 1943), provides:

“The water of all streams and other sources in this State, whether flowing above or under the ground, in known or defined channels, is-hereby declared to be the property of the public, subject to all existing rights to the use thereof.”

These statutes may not vest the state with the proprietary ownership of the water but they clearly do enjoin upon the state the duty to control the appropriation of the public waters in a manner that will be for the best interests of the public. The precise question involved in this case has never been passed on by this court but similar questions have been before the courts of other states, under statutes much like ours, where it has been invariably held that the state may reject or limit applications to appropriate its unappropriated waters. Young & Norton v. Hinderlinder, supra; In re Commonwealth Power Co., 94 Neb. 613, 143 N. W. 937; Kirk v. State Board of Irrigation, 90 Neb. 627, 134 N. W. 167; Cookingham v. Lewis, 58 Or. 484, 114 P. 88, 115 P. 342; In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475; East Bay Utility District v. Department of Public Works, 1 Cal. 2d 476, 35 P. 2d 1027, 1029.

Plaintiff’s counsel contend that, “the purported power of rejection on the grounds acted upon in this case, in the absence of a legislative standard or something more to guide the engineer in his determination is a fia-grant and unlawful delegation of legislative authority.” In East Bay Utility District v. Department of Public Works, supra, this question was discussed. There the petitioner applied for a permit to appropriate for power purposes, the unappropriated waters of Mokelumne river. The department inserted in the permit the following provision::

“The right to store and use water for power purposes under this permit shall not interfere with future appropriations of said water for agricultural or municipal purposes.”

The California statute under which the department acted contained the following provisions:

“It is hereby declared to be the established policy of this state that the use of water for domestic purposes is the highest use of water and the next highest use is for irrigation. In acting upon applications to appropriate water the commission shall be guided by the above declaration of policy. The commission shall reject an application when in its judgment the proposed appropriation would not best conserve the public interest.” St. 1921, p. 443, § 15.

The court said:

“Of course, it must always be kept in mind that the state authority cannot arbitrarily, and upon caprice only, reject an application. Clearly, the manner in which the unappropriated waters of the streams of the state shall be distributed among the applicants therefor involves questions of policy, and the Legislature, in the interest of public welfare, may prescribe reasonable conditions. * * * Where the facts justify the action, the water authority should be allowed to impose, in the public interest, the restrictions and conditions provided for in the act.”

The California statute authorized the commission to “reject an application when in its judgment the proposed appropriation would not best conserve the public interest.” Our statute directs the engineer to reject .an application when its approval would, in his opinion, “interfere with the more beneficial use” of the water, or “would prove detrimental to the public welfare.” The California statute expressly declares “that the use of water for domestic purposes is the highest use * * * and that the next highest use is for irrigation.” Our statute, Sec. 10, Chap. 67, Laws of Utah 1919 (now 100-3-21, U. C. A. 1943), provides that, “in times of scarcity, * * * the use for domestic purposes shall have preference over use for all other purposes * * * and use for agricultural purposes shall have preference over use for any other purpose except domestic use.” While this statute did not lay this rule down expressly to guide the engineer in rejecting or approving applications as did the California statute, it did indicate clearly that the legislature considered those two uses as the two most beneficial uses which water may be applied to. That domestic use is the most beneficial use for water and that irrigation is the next most beneficial use in the arid western states is a self-evident and well recognized fact regardless of any statute. So under the authority of this California case if the State Engineer or the District Court in his stead applied those standards and did not act arbitrarily or capriciously his action must be upheld.

Here the state had spent in excess of $25,000 merely in investigation and planning for this project, prior to the filing of plaintiff’s application. The United States was interested and had indicated its willingness to construct the project if sufficient water could be obtained for storage purposes, and proper arrangements could be made with the holders of the power rights on the streams in question. The plans which were then in the formative stages contemplated the expenditure of large sums of money to bring the water from the Weber river and to tunnel through a mountain to the Duchesne river to obtain the necessary water for this project. By this project it is planned to supplement the supply of water for domestic and irrigation purposes to a larger portion of the population of this state. In the face of this, if plaintiff’s application were approved without limitations, he would be entitled to have the flood waters of the Provo river run through his plant, and thereby prevent the storage thereof in the Deer Creek reservoir, regardless of how great the demand for water might be, and regardless of the fact that if it were stored it might be used for power purposes during the dry seasons and at the same time be used for domestic and irrigation purposes. Thus the facts found are suffi cient to support the decree and the District Court did not act arbitrarily.

The District Court, in limiting the priority of plaintiff’s rights, relied on two separate and distinct provisions of the statute: First, the provision which requires the engineer to reject an application where in his opinion its approval would “interfere with the more beneficial use for irrigation, domestic or culinary purposes, stock watering, power or mining development, [or] manufacturing, * * *This provision does not provide that one of the uses mentioned is a “more beneficial use” than any other use mentioned. It does not indicate that the uses mentioned first are more beneficial than those mentioned later. It refers to each use mentioned as “the more beneficial use,” thus indicating that such use under certain circumstances may be a more beneficial use, and limiting the possible more beneficial uses to those mentioned. It mentions almost all possible beneficial uses, thus indicating that under certain circumstances one of the mentioned uses might be more beneficial than another, and not limiting the uses which are not more beneficial to uses other than those mentioned. Evidently the legislature intended that upon the filing of an application to appropriate water the State Engineer should determine from the facts and circumstances of each case whether the approval thereof would interfere with the more beneficial use of the water, for one of the purposes mentioned, whether the purpose proposed in the application was for one of the purposes mentioned or for some other purpose. This is the construction placed upon this provision by the District Court. It found that to store the flood waters of the Provo river to be later used for domestic, irrigation and other purposes was the more beneficial use which the approval of plaintiff’s application, without making it subject to those rights, would interfere with. This decision not being arbitrary ,or capricious but based upon experience and well recognized principles must be sustained.

The State Engineer is also required by the statute to-reject an application where in his opinion its approval “would prove detrimental to the public welfare.” Under a statute using the exact words above quoted, the Supreme Court of Nebraska has approved the rejection of an application where there was a prior application to appropriate the same water. In re Commonwealth Power Co., supra, and in Kirk v. State Board of Irrigation, supra, under the same statute, that court held that the Board acted within the statute where it approved an application to appropriate water for power purposes, with the limitation that the electricity generated shall not be transmitted beyond the boundary of that state. These decisions hold that anything which is not for the best interest of the public would be “detrimental to the public welfare.” The Supreme Court of Oregon has given the terms “menace to the safety and welfare of the public” a similar construction. Cookingham v. Lewis, 58 Or. 484, 114 P. 88, 91, 115 P. 342; In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475. Under this construction the State Engineer was authorized to reject or limit the priority of plaintiff’s application in the interest of the public welfare.

Nor does the fact that the Governor is authorized by law to withdraw waters from appropriation, Sec. 100-8-1, U. C. A. 1943, indicate that the engineer may not reject an application under the facts of this case. The statutes clearly contemplated the withdrawal by the Governor and the rejection by the engineer, and the one does not indicate that the other should not be exercised.

The decision of the District Court is affirmed with costs to the respondents.

McDonough, j., concurs.