Jensen v. Morgan, 900232

• Decision Date: 31 July 1992
• Docket Number: No. 900232,900232
• Parties: In the Matter of the General Determination of Rights to the Use of All Water, Both Surface and Underground, Within the San Rafael River Drainage Area and All Its Tributaries in Utah. Russel H. JENSEN, Plaintiff and Appellant, v. Robert L. MORGAN, State Engineer of the State of Utah; and United States of America, intervenor, Defendants and Appellees.
• Court: Utah Supreme Court

Page 287

844 P.2d 287

In the Matter of the General Determination of Rights to the

Use of All Water, Both Surface and Underground,

Within the San Rafael River Drainage

Area and All Its Tributaries in Utah.

Russel H. JENSEN, Plaintiff and Appellant, v. Robert L. MORGAN, State Engineer of the State of Utah; and United States of America, intervenor, Defendants

and Appellees.

No. 900232.

Supreme Court of Utah.

July 31, 1992.

Rehearing Denied Dec. 24, 1992.

E.J. Skeen, Salt Lake City, for Russel H. Jensen.

R. Paul Van Dam, John H. Mabey, Jr., and Michael M. Quealy, Salt Lake City, for Robert L. Morgan.

Dee V. Benson, Salt Lake City, Robert L. Klarquist, and John R. Hill, Denver, for U.S.

HOWE, Associate Chief Justice:

Plaintiff Russel H. Jensen appeals from an order dismissing two separate actions that he had filed in the trial court. On his motion, the two actions were consolidated because they both involved a water right claimed by Jensen in Bull Hollow, a tributary of the San Rafael River in Emery County. For clarity, the facts giving rise to each of the actions are separately stated.

I. CIVIL NO. 1435 (GENERAL ADJUDICATION)

On May 28, 1953, the trial court entered an order requiring that all water rights within the San Rafael River drainage area be adjudicated pursuant to title 73, chapter 4 of the Utah Code.

On October 12, 1977, Jensen filed his water-user's claim ("WUC") 93-1114 for 200 acre feet for irrigation and entered his appearance in the general adjudication proceeding. He listed his address on the claim as 4570 West 5780 South, Kearns, Utah 84118. The United States Bureau of Land Management ("BLM") filed WUC 93-1091 on August 25, 1983, for the storage of water in a new reservoir it had constructed at the old Buckhorn Reservoir site. ¹

Subsequent water applications signed and filed by Jensen with the state engineer in the early part of 1983 did not bear the Kearns address but listed it simply as Huntington, Utah 84528. Therefore, since 1983 all correspondence regarding water rights matters has been mailed by the state engineer to Jensen at Huntington, Utah 84528. In late 1983, the state engineer published and distributed book 2 of Proposed Determination of Water Rights in San Rafael River Drainage Area. That determination approved Jensen's WUC 93-1114 and the BLM's WUC 93-1091.

Jensen was given notice by regular mail in November 1983 that a copy of book 2 was available in the state engineer's office. That notice was addressed to him as follows: "Russel H. Jensen, Huntington, Utah 84528." Jensen personally went into the state engineer's office in Price, Utah, and picked up a copy on December 12, 1983. He did not protest or object to the proposed determination in book 2. That same month, Jensen filed WUC 93-957 based on "State Engineer's Certificate of Appropriation of Water, No. 2167," dated January 17, 1925, which entitled Jensen to store 500 acre feet of water annually from Bull Hollow in the old Buckhorn Reservoir for the irrigation of 152.1 acres of land. ² His address was again listed on the WUC 93-957 as Huntington, Utah 84528.

In 1986, the state engineer published and distributed book 5 of the proposed determination, subtitled "Supplement, Pending Applications, Disallowed Claims, and Indexes." This book recommended that Jensen's WUC 93-957 be disallowed for non-use. A copy of book 5 was sent by regular mail on March 4, 1986, to Jensen at Huntington, Utah 84528. The copy was not returned to the state engineer by the postal service. The first page of book 5 contained a notice to all water users that if they disagreed with the proposed determination, they must file an objection with the court within ninety days as required by Utah Code Ann. § 73-4-11. No protest or objection was filed by Jensen for over three years. Finally, on July 10, 1989, Jensen filed a petition in the general adjudication proceeding which objected to the recommended disallowance of WUC 93-957 in book 5 and challenged the granting of the BLM's WUC 93-1091. A motion to dismiss this petition was filed on the ground that Jensen had failed to file a timely objection to the proposed determination in book 5. The motion was granted by the trial court.

II. CIVIL NO. 4975

On July 8, 1985, Jensen filed an application with the state engineer to change the point of diversion of the water to which he was entitled under his certificate of appropriation No. 2167. This is the same water right claimed by Jensen in his WUC 93-957. The BLM protested this change application and appeared at an administrative hearing held before the state engineer on May 19, 1987.

The state engineer rejected the change application in a memorandum decision dated July 17, 1987, which recited the following: the original Buckhorn Reservoir had been breached prior to 1954; it was questionable whether any water was stored under Jensen's right since the mid-1950s; a right-of-way owned by Jensen's predecessor in interest on BLM property for the Buckhorn Reservoir dam and ditches was permanently canceled in 1961; the BLM subsequently received a water right for Buckhorn Reservoir (WUC 93-1091) and the reservoir was rebuilt by the BLM in 1968; and no water had been stored or used by Jensen or his predecessors under WUC 93-957 for possibly as many as forty years. In denying the change application, the state engineer wrote:

It was the recommendation of the State Engineer during the recent adjudication [case No. 1435] that this particular water right had been lost because of non-use. It is recognized that the State Engineer does not have statutory authority to make a final decision on the matter of non-use; however, it is within his jurisdiction to make such recommendations to the court. It appears that it may have been as many as forty years since water was stored in Buckhorn Reservoir under this right and released into Bull Hollow to irrigate the applicant's land.

On September 14, 1987, Jensen filed this action in the trial court, Civil No. 4975, to review the state engineer's denial pursuant to Utah Code Ann. § 73-3-14. The BLM intervened as a defendant. The state engineer and the BLM filed timely answers. Jensen took no action on the case until August 18, 1988, when he filed a notice of readiness for trial. Trial was subsequently set for January 24 and 25, 1989. However, the parties later stipulated that the trial setting should be changed to a pretrial conference. A new trial date was set for July 27, 1989, approximately six weeks prior to the running of the limitation contained in section 73-3-15, which requires cases to be dismissed if not prosecuted to a final judgment within two years. Finally, two weeks before the trial date, Jensen filed a motion to consolidate Civil No. 4975 with the ongoing general adjudication (Civil No. 1435). The state engineer and the BLM filed a joint response to Jensen's motion to consolidate. They did not oppose the motion; however, they pointed out that consolidation would necessitate a continuance of the July 27 trial date, and they expressly preserved the right to file a motion to dismiss for failure to prosecute the suit to a final judgment. The trial court granted consolidation for all purposes because of common questions of fact and law but on April 23, 1990 (the same time it dismissed Jensen's petition in Civil No. 1435), granted a motion to dismiss the action for Jensen's failure to prosecute it to a final judgment within two years.

III. ISSUES ON APPEAL

Jensen raises two primary issues on this appeal: (1) Did the trial court properly dismiss Civil No. 1435 (his petition filed in the San Rafael River general adjudication) because he failed to file timely objections to the proposed determination of water rights in book 5 as required by Utah Code Ann. § 73-4-11? (2) Did the court properly dismiss Civil No. 4975 (his action challenging the decision of the state engineer rejecting his change application) because he failed to prosecute the action to a final judgment within two years as mandated by Utah Code Ann. § 73-3-15?

IV. DISMISSAL OF PETITION IN THE GENERAL ADJUDICATION ACTION

As this court recognized in Smith v. District Court, 69 Utah 493, 498, 256 P. 539, 544 (1927), the purpose of the general adjudication process is to prevent piecemeal litigation regarding water rights and to provide a permanent record of all such rights by decree. Once the general adjudication is initiated, the state engineer is required to give notice to all water users of record and to give further notice by publication. Utah Code Ann. § 73-4-4. Water users then submit their water user claims, outlining their respective claims to the water use. Utah Code Ann. § 73-4-5.

The state engineer prepares a hydrographic survey of the river system and evaluates various water user claims. Utah Code Ann. § 73-4-3. After a full consideration of the claims, surveys, records, and files, the state engineer publishes a proposed determination of water rights. Utah Code Ann. § 73-4-11. A copy of the proposed determination is either mailed or hand-delivered to each claimant for review. Within ninety days after such service, any water user dissatisfied with the proposed determination may file an objection with the district court. The court then hears evidence and renders judgment on the contested claims. Utah Code Ann. §§ 73-4-13 & -15. Absent a protest, the district court must enter judgment in accordance with the proposed determination. Utah Code Ann. § 73-4-12.

Section 73-4-24 provides, "[I]f, during the pendency of a general adjudication suit, there shall be a dispute involving water rights of less than all of the parties to such suit, any interested party may petition the court in which the general adjudication suit is pending to hear and determine the dispute." It was pursuant to this section that Jensen filed his petition on July 10, 1989, contesting the recommendation in book 5 that his WUC 93-957 be denied and that the BLM's WUC 93-1091 be...