Weber Basin Water Conservancy District v. Gailey

303 P.2d 271, 5 Utah 2d 385, 1956 Utah LEXIS 121

• Court: Utah Supreme Court
• Decided: November 7, 1956
• Docket: 8478
• Status: Published

Opinions

McDonough, chief justice.

The Weber River rises in the Uintah Mountains in northern Utah and flows into Great Salt Lake. The annual flood discharge from snow melt occurs in April, May and June, varying greatly from year to year, with a maximum flow of over 5,000 second feet. Most of the normal summer flow has been appropriated but the great part of the annual run-off still escapes into the Great Salt Lake, frequently flooding the valley farms in its course. The Weber Basin Project, Utah, was authorized by the Act of August 29, 1949, 63 Stat. 677, to control floods and conserve the water. By this Act, the Secretary of the Interior, through the Bureau of Reclamation, was empowered to construct, operate, and maintain reservoirs, irrigation and drainage works, power plants, and transmission lines in the area. In order to make the project self-supporting and financially solvent, the Act provided that an organization within the State of Utah should be established, having the power to tax property within the boundaries of the district and the power to enter into contract with the United States for payment of reimbursable costs.

The Weber Basin Water Conservancy District was established in Utah in accordance with the Water Conservancy Act, Laws of Utah 1941, c. 99, U.C.A.1953, Title 73. In accordance with the powers of eminent domain granted it, the Weber Conservancy District commenced condemnation proceedings against the appellant, Frank Bohman, along with other defendants, to obtain land for the Gateway Canal, a concrete-lined diversion for water from the Weber River to a maximum of 700 second feet. Mr. Bohman received payment for the land actually taken for the construction of the canal, but the trial court refused to allow him to introduce evidence to show that other portions of his land, not taken by the District, would suffer as a result of the diversion. It is his contention that the spring floods supply his land with subirrigation and he asks that he be compensated for the expenditures which he will have to make in leveling his land and buying irrigation rights to fit his land for raising the crops he now raises without irrigation.

The trial judge limited the proof in this case strictly to the value of the land condemned because he felt that rights which appellant might have to subirrigation waters would not be lost because of the construction of the canal and if they were lost at a later date, the loss would occur by reason of dams and other diversionary projects higher up on the river. Some of these dams and projects are in the planning stage and, in fact, the money for their construction has not yet been appropriated. The canal itself is expected to carry water in the Spring of 1957.

The trial court made no findings as to appellant’s rights to subirrigation waters and stated that he did not consider the matter litigated at this time. Appellant does not claim that he has the right to present proof of damage which might occur as a result of the operation of the entire project, but instead limits his appeal to his right to prove the injuries which will occur to him as a result of the operation of the canal.

Because of the trial court’s ruling, most of the issues presented by the parties cannot be determined from the brief record before us nor are they ripe for appeal. In fact, all of the points raised by respondent are not in issue in view of appellant’s assertion that he desires only to prove that valu - able subterranean water upon his land will be taken by the operation of the Gateway Canal, the project for which this condemnation suit was commenced. We cannot here determine without evidence the nature of appellant’s right, whether or not he will be damaged, or whether the damage he claims is remote and speculative. On the basis of the record before us, it appears that proving such damage will be difficult, but appellant merely asks the right to assume his burden of proof.

It is unnecessary to set forth here U.C.A.1953, 78-34-10, which allows for a hearing on, and compensation for, severance damages and damages which will occur by virtue of construction of the proposed improvement even though no part of the property is taken. As is stated in 3 Nichols on Eminent Domain, sec. 9.221:

“ * * * It is well settled that when a public work is laid out through a tract of private land, the owner is entitled to receive, in addition to the value of the land taken, compensation for the injury that will be done to the remainder of the tract by the construction and operation of the public work.”

The case is remanded to the lower court with directions to retain jurisdiction until the completion of the Gateway Canal and diversion of water thereby, and thereafter take evidence to determine the damage, if any, caused to appellant’s land because of such diversion. Costs to appellant.

HENRIOD, J., concurs.