Riordan v. Westwood

Decision Date11 March 1949
Docket Number7109
Citation115 Utah 215,203 P.2d 922
CourtUtah Supreme Court
PartiesRIORDAN v. WESTWOOD et al

Appeal from District Court Seventh District, Grand County; A. H Ellett, Judge.

Action by Jessie Riordan against J. S. Westwood, and Ed. H. Watson state engineer, involving an application by the defendant Westwood to the state engineer's office for appropriation of water. From a judgment refusing to approve the application, the defendant, Westwood, and the state engineer appeal.

Judgment vacated and matter remanded.

Grover A. Giles, Atty Gen. and Edward W. Clyde Special Asst. Atty. Gen., for Ed H. Watson, State Engineer.

Hammond & Hammond, of Price, for appellant Westwood.

Weston L. Bayles and Knox Patterson, both of Salt Lake City, for respondent.

Wade, Justice. McDonough, J., concurs. Pratt, Chief Justice (concurring in part; dissenting in part). Wolfe, Justice (concurring in part; dissenting in part). Latimer, Justice (concurring in part; dissenting in part).

OPINION

Wade, Justice.

The defendants, Westwood and the State Engineer, appeal from the decision of the district court which refused to approve an application by the defendant Westwood to the State Engineer's Office to appropriate .25 cubic feet per second of water. The state engineer approved this application over the protest of plaintiff Mrs. Riordan who is the owner of the lands on which the applicant proposes to divert and appropriate the waters in question. Plaintiff appealed from the engineer's decision by commencing this action in the district court and both the state engineer and the defendant Westwood appeal from that decision.

The matter was tried on a stipulation of the facts which was adopted as a part of the court's findings of fact. The substance of the stipulated facts which are material to this case are as follows: That for 80 years prior to the commencement of this action plaintiff and her predecessors in interest have owned the land in question; that a spring area has existed on such lands which rises in a conglomerate of sand, clay and sandstone in a ravine at the foot of sand stone cliffs just north of the town of Moab, approximately 100 feet higher in elevation and 500 feet north of any cultivated lands of the plaintiff and that no water from said spring area has ever found its way to such lands except in times of heavy rains. The heavy rains are not involved in this action. For at least 20 years prior to the commencement of this action there has been sufficient water in this spring area to support the growing of a few brush, some small patches of native grass and a few scrubby cottonwood trees. The water sufficient to sustain this growth has come from this spring area other than the downpour in time of heavy rains. During the prolonged wet seasons the water at such spring would rise to the surface sometimes in quantity sufficient to form a small pond but never sufficient to flow on top of the ground in any channel except temporarily from the downpour of rains.

Within 6 months prior to February 28, 1944, Westwood, believing that such spring area was on public lands, excavated a channel about 18 inches wide and 6 inches deep for a distance of about 50 feet in the conglomerate materials around the spring area and then tunnelled about 25 feet at which point he contacted water which flowed in said channel. For the first 10 days about .25 of a cubic foot per second of water flowed therefrom, but after that time it diminished to about .05 of a cubic foot per second, which still continues to flow for a distance of about 50 feet where in sinks into the soil. After striking this flow of water and still believing that it was located on public lands, Westwood filed in the office of the state engineer an application to appropriate such water to which plaintiff objected and after a hearing thereon the state engineer approved the application, which on appeal was reversed by the district court. Neither plaintiff nor her predecessors in interest have ever filed an application with the state engineer for the appropriation of any water from this spring area, nor have they made any beneficial use of such waters or done any development work thereon. On these stipulated facts the district court refused to approve Westwood's application to appropriate these waters.

The question here presented is whether the right to the use of these waters may be acquired pursuant to our statutes governing the appropriation of public waters. In other words we must determine whether these are public waters of the state, and therefore subject to appropriation. If they are the trial court must be reversed. If on the other hand they belong to the owner of the soil through which they pass they are not subject to appropriation. In that case the decision must be affirmed. When the defendant Westwood located these waters the land where they were discovered was not part of the public domain but had long since been reduced to private ownership. Prior to the discovery by him no one had ever developed or used these waters by artificial means. The record shows that Westwood tunnelled about 25 feet "at which point he contacted water which flowed in said channel," whether it was diffused through the soil around the tunnel and drained therefrom into it or whether he directly contacted it as an underground flowing stream does not appear, but it does appear that it became a stream upon digging the tunnel. Prior to the digging of the tunnel these waters did not come to the surface in the form of a stream nor did they ever flow on the surface in a natural channel, the only evidence of their existence prior to that time was that there was a spring area, how large is not disclosed, which supported some grass, bushes and trees, and during the time of heavy rains sometimes a pond was formed on the surface. Where the waters came from and where they went from the spring area does not appear from the record, whether they were used up by the plant life which they supported, or evaporated into the air or were diffused in the soil so widely that their course could not be traced, or whether a part of all three of the suggested methods contributed to their disappearance the record does not disclose. But it does appear that except in times of heavy rain fall when the water flows over the surface, none of these waters ever reach the plaintiff's cultivated lands which are 500 feet from the spring area.

From the earliest history to the present time this court has recognized that the right to the use of public waters of this state could be acquired by diversion and beneficial use. Monroe v. Ivie, 2 Utah 535. At first no formal proceedings were required in order to acquire such right but in 1897 the legislature provided for the posting of a notice of intention to appropriate, and thereafter recording the same. Laws of Utah 1897, Chapter 52, Section 8. In 1903 comprehensive legislation was enacted creating the Department of the State Engineer, and requiring that an application to appropriate be filed in that department in order to make future appropriations of water in this state. See Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 239 P. 479; Wrathall v. Johnson, 86 Utah 50, 40 P. 2d 755. See Laws of Utah 1903, chapter 100 wherein the following sections appear:

Sec. 34.

"Rights to the use of any of the unappropriated water of the State may be acquired by appropriation, in the manner hereinafter provided, and not otherwise . The appropriation must be for some useful or beneficial purpose, and, as between appropriators, the one first in time shall be first in right." (Emphasis ours.)

Sec. 47.

"The waters of all streams and other sources in this State, whether flowing above or underground, in known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof."

Sec. 49.

"Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this State."

This court throughout its history has recognized that percolating waters are not public waters but belong to the soil through which they pass and are the property of the owner thereof, and are not the subject of appropriation. See Sullivan v. Northern Spy Mining Company, 11 Utah 438, 40 P. 709, 30 A. L. R. 186; Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 P. 244, 70 Am. St. Rep. 810; Herriman Irr. Co. v. Butterfield M. & M. Co. 19 Utah 453, 57 P. 537, 51 L. R. A. 930; Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 60 P. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687; Herriman Irr. Co. v. Keel, 25 Utah 96, 69 P. 719; Garns v. Rollins, 41 Utah 260, 125 P. 867, Ann. Cas. 1915C, 1159; Roberts v. Gribble, 43 Utah 411, 134 P. 1014; Stookey v. Green, 53 Utah 311, 178 P. 586; Peterson v. Eureka Hill Mining Co., 53 Utah 70, 176 P. 729; Peterson v. Lund, 57 Utah 162, 193 P. 1087; Deseret Live Stock Co. v. Hooppiania, supra; Midway Irr. Co. v. Snake Creek Mining & Tunnel Co., 8 Cir., 271 F. 157, affirmed 260 U.S. 596, 43 S.Ct. 215, 67 L.Ed. 423; Horne v. Utah Oil Refining Co., 59 Utah 279, 202 P. 815, 31 A. L. R. 883; Silver King Consol. Min. Co. v. Sutton, 85 Utah 297, 39 P. 2d 682; Wrathall v. Johnson, supra; Justesen v. Olsen, 86 Utah 158, 40 P. 2d 802.

However there are well established exceptions to this rule. Thus in the early case of Sullivan v. Northern Spy Mining Co., supra, we held that where a man went on the public domain and developed a water hole where the percolating waters gathered, and placed them to a beneficial use, the owner who later acquired the property took the same subject to appropriator's vested right to the use of this water. We have also repeatedly held that the appropriators of the waters of natural streams...

To continue reading

Request your trial
19 cases
  • Bingham v. Roosevelt City Corp.
    • United States
    • Utah Supreme Court
    • May 14, 2010
    ...reflect the law in Utah. The proposition that water in the soil belongs to the corresponding landowner is borne from dicta in the case Riordan v. Westwood.19 In that case, water from the soil percolated through the surface of the land and formed a spring on the appellee's land.20 The appell......
  • Salt Lake City v. Silver Fork Pipeline Corp.
    • United States
    • Utah Supreme Court
    • January 7, 2000
    ...law simply subjected appropriators of underground waters to the statutory application process of our Water Code.13 See Riordan, 115 Utah at 224-25, 203 P.2d at 927. ¶ 33 SFPC's argument that the Morse Decree could not grant Salt Lake title to percolating water intercepted in the mine becaus......
  • Current Creek Irr. Co. v. Andrews
    • United States
    • Utah Supreme Court
    • October 1, 1959
    ...719, where we awarded damages for lowering the point of diversion of a prior appropriator.1 Sec. 73-1-1, U.C.A.1953; Riordan v. Westwood, 115 Utah 215, 203 P.2d 922.2 Sec. 73-3-1, U.C.A.1953.3 11 Utah 438, 40 P. 709, 710, 30 L.R.A. 186.4 Crescent Min. Co. v. Silver King Min. Co., 17 Utah 44......
  • Little Cottonwood Water Co. v. Sandy City
    • United States
    • Utah Supreme Court
    • June 3, 1953
    ...Utah, 238 P.2d 1132. Petition for rehearing denied, 242 P.2d 774; Whitmore v. Murray City, 107 Utah 445, 154 P.2d 748; Riordan v. Westwood, 115 Utah 215, 203 P.2d 922.1 Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 289 P. 116; Eardley v. Terry, 94 Utah 367, 77 P.2d 362; Tanner v. Bac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT