Carbon Canal Co. v. Sanpete Water Users Ass'n
| Citation | 19 Utah 2d 6,425 P.2d 405 |
| Decision Date | 16 March 1967 |
| Docket Number | Nos. 10122,10123,s. 10122 |
| Parties | d 6 CARBON CANAL COMPANY, a corporation et al., Plaintiffs and Appellants, v. SANPETE WATER USERS ASSOCIATION, a corporation, and Wayne D. Criddle, State Engineer or the State of Utah, Defendants and Respondents. PRICE RIVER WATER IMPROVEMENT DISTRICT et al., Plaintiffs and Appellants, v. SANPETE WATER USERS ASSOCIATION, a corporation, and Wayne D. Criddle, State Engineer of the State of Utah, Defendants and Respondents. |
| Court | Utah Supreme Court |
Luke Pappas, Price, Stanley Litizzette, Helper, E. J. Skeen, Salt Lake City, for appellants.
Nielsen, Conder & Hansen, Arthur H. Nielsen, Phil L. Hansen, Atty. Gen., Dallin W. Jensen, Asst. Atty. Gen., Salt Lake City, for respondents.
Appeal from two cases, consolidated for purpose of appeal. In the first, the trial court upheld the State Engineer's jurisdiction to entertain another application for extension of time to prove up a claim to appropriate water, while a previous extension of time granted by the court, that had retained jurisdiction during such extension period, was still pending and before such extension period had expired. This case raised the question of jurisdiction.
The second case attacked the State Engineer's jurisdiction to process the application for extension and also his granting of another extension. The contentions in this second case that 1) he had no jurisdiction to process the application, since the trial court still retained jurisdiction over the matter, and even so 2) the evidence did not show (a) the quality and quantum of activity to show due diligence in proving up or (b) any reasonable delay in attempting to do so.
We think the evidence presented in either or both of the cases, compels us to resolve the doubt in favor of due diligence in expeditious development of water, and not in favor of the delay reflected in the facts developed, most of which were inadmissible, having occurred after the extension had expired. In the light of this principle, we hold that the applicant proved neither the required diligence nor a reasonable excuse for delay by that high type of convincing evidence demanded in water development cases. We reverse both causes, therefore, and adjudge that Carbon's claim of October 11, 1937, has a priority over Sanpete's 1924 priority. Carbon, therefore, is now charged with burden of pursuing its claim by such high type of convincing evidence.
Part of the history of this protracted litigation is found in Carbon Canal Company v. Sanpete Water Users Association, 1 to which we refer the reader without repetition here.
There are a few facts not documented there, which may be reported here, interesting in this problem and its solution:
Carbon or its predecessors had a 1922 priority under application 8989(a). Sanpete's is under 9593, dated 1924,--subject of this rather peripatetic litigation that seems to have meandered more than the Price River. The 9593 application of Sanpete was rejected by the State Engineer, which provoked an appeal by Sanpete to the District Court. That appeal, for some reason or another, languished and almost suffered rigor mortis in the District Court for fifteen years until 1939, when the court revived it and reversed the State Engineer's decision. This established Sanpete's priority of 1924. In the meantime the Carbon interests had filed for an extension of their 8989(a) application, but because of some unexplained inadvertence, filed it nine days late, and therefore its priority promptly was changed from 1922 to 1937. As pointed out the court stirred thereafter and in 1939, two years later, knocked Carbon's 1937 priority out of the water, giving the folks across the mountain a priority dating thirteen years before Carbon's.
In the meantime, the natural flow of Price River had been used beneficially by Carbon and perhaps other interests. That decision is significant here, if only to buff Sanpete's claim that Carbon, by protesting the former's repeated applications for extensions, delayed its proving up on the water. To refute Sanpete's contention, Carbon well might say the fifteen-year reprieve given Sanpete by the court at the instance of Sanpete, not only frustrated Carbon's claims but pygmied its priority rights,--sort of ex post facto like. But for that belated court decision, the water of the Price River likely never would have been flowing in this court.
Since 1939 numerous Sanpete applications for extensions have been allowed up to the present case,--for over a quarter century. Sanpete's successful extensions for decades leaving but few years to go, 2 impel this court, in a conceded equity case, 3 to canvass the facts to determine if, in this arid state, where a drop of water is a drop of gold, one, by extension after extension, may equitably prevent beneficial use of water by others through procedural stagnation for about forth years. We think not, under the facts of this case, and that the claimants under 9593 have not sustained the burden of showing entitlement by that high degree of quantitative and qualitative proof necessary in cases having to do with such water rights.
Another fact: Sanpete having been able to file its application for another extension much sooner, either with the State Engineer or the court, or both, chose not to file anything in the pending court case, but elected to file an application only with the State Engineer, 4 on a Friday,--two days before the deadline of the court's extension over which the court at that time had retained jurisdiction. The next day, Saturday, the court was closed as was the case on Sunday, the following day. It is quite obvious that this filing without notice to the Carbon interests, made it impossible for the latter to file any kind of a pleading or protest either with the State Engineer or the court prior to the extension deadline. It seems to us that one seeking equity should do it,--on secular days as well as on those set aside for repose, in order to permit the other side to exercise its prerogative anent confession or avoidance.
Sanpete's counsel suggests, arguendo, that the State Engineer and the District Court had concurrent jurisdiction over the matter of another extension. The question immediately is posed, therefore, as to why the applicant did not extend the same courtesy to the trial court, that then and there had complete jurisdiction over this matter, by filing a petition for extension with the latter. There seems to be no answer unless one espouses the fallacious idea that a statute, by asserting that an unelected administrative agency has authority to override the jurisdiction of the judiciary in an equity case which constitutionally is invested with it, which is superlunary. Unfortunately in this case the trial court subscribed to such a thesis. We don't,--and having exercised our jurisdiction in entertaining this appeal, we decide as we do.
It is no answer for the trial court to say in a memorandum opinion that if it decided otherwise it would 'sound the death knell to Sanpete's project.' There is nothing in the record to justify this conclusion. Even if there were, it would be no legal or equitable justification for lack of diligence or reasonable delay in going forward. The trial court itself had some doubt about the jurisdictional question here, conceded that this court had decided that the courts had plenary jurisdiction in a case like this, but concluded to discount it.
The so-called North Sanpete Water Conservation Project, according to the record, is a multi-million dollar undertaking designed to conserve the water to which Sanpete heretofore and now contends it has rights. It is not designed, necessarily, to create more water, but to prevent demonstrated leaks in present canals, and to improve distribution of water to a part of Sanpete County situate in the northwest area, designed for irrigation purposes.
Sanpete's application 9593 represents a small part of an undertaking of considerable magnitude. There is nothing to indicate that the project would fail without proving up on the application,--the potentialities of which application are conjectural because of testimony that there is not enough unappropriated water to satisfy the claim. This, because of the so-called Morse decree of 1902, and prior other commitments, to the effect that the waters of Gooseberry Creek already have been appropriated. The only real evidence proffered by applicant is to the effect that the project--the whole project, and not simply 9593-- was 'feasible.' Over many years, with hearings before various officials, there has been no firm commitment for using government funds to complete the project, and such non-committal has persisted through this litigation.
The record in this case indicates that the applicant relied almost entirely upon a hope that free governmental funds might be forthcoming,--and this was the real cause for the delay, and quite probably the cause for lack of diligence.
The jurisdictional question having been resolved, what about a) diligence and b) excuse for delay?
As to a): There is little in this record to show diligence in going ahead in developing water under 9593, except for the payment of Sanpete County Water Conservancy District board members' salaries, secretarial expense, attorneys' fees, and mileage for a number of people going to hearings in Washington and Salt Lake. All of this to get free money to advance the interests of the whole project, not application 9593--which up to the time of this appeal resulted in no firm commitment for any funds, but only arguments pro forma and con. The balance sheet of the Conservancy District substantiates the foregoing. There is one bit of evidence, supported by a photograph, that 1050 cubic yards of earth were pushed aside for access to a hoped-for tunnel, not solely to convey undeveloped water under application 9593, but largely to seal leaks, conserve water to...
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