Current Creek Irr. Co. v. Andrews

• Decision Date: 01 October 1959
• Docket Number: No. 8745,8745
• Citation: 9 Utah 2d 324,344 P.2d 528
• Parties: d 324 CURRENT CREEK IRRIGATION CO., a corporation, Plaintiff and Appellant, v. Orviile ANDREWS, Defendant, Respondent and Cross-Appellant. Orville ANDREWS et al., Plaintiffs, Respondents and Cross-Appellants, v. CURRENT CREEK IRRIGATION CO., a corporation, et al., Defendant and Appellant. Gerald FOWKES et al., Plaintiffs, Respondents and Cross-Appellants, v. CURRENT CREEK IRRIGATION CO., a corporation, et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 528

344 P.2d 528

9 Utah 2d 324

CURRENT CREEK IRRIGATION CO., a corporation, Plaintiff and Appellant, v. Orviile ANDREWS, Defendant, Respondent and Cross-Appellant.

Orville ANDREWS et al., Plaintiffs, Respondents and Cross-Appellants, v. CURRENT CREEK IRRIGATION CO., a corporation, et al.,

Defendant and Appellant.

Gerald FOWKES et al., Plaintiffs, Respondents and Cross-Appellants, v. CURRENT CREEK IRRIGATION CO., a corporation, et al.,

Defendants and Appellants.

No. 8745.

Supreme Court of Utah.

Oct. 1, 1959.

Clyde & Mecham, Salt Lake City, Robert B. Porter, Deputy Atty. Gen., for appellant.

Carvel Mattsson, Richfield, E. J. Skeen, Salt Lake City, Christenson, Novak & Paulson, Provo, for respondents.

WADE, Justice.

Three cases are consolidated involving claims to water rights in various wells and springs in an underground water basin near Mona, Juab County, Utah. It is unnecessary at this point to detail the claims and counterclaims, appeals and cross-appeals. The position of the parties on the issues involved will be apparent. We group them according to their interests, and refer to them as Andrews (Orville Andrews, et al.), Fowkes (Gerald Fowkes, et al.), Current Creek Co. (Current Creek Irrigation Co.), and the State Engineer.

The central problem is whether prior appropriators of water from an underground basin, who receive it by means of flowing wells and springs, have a vested right to cotinue receiving water by artesian pressure; and whether subsequent appropriators, whose withdrawals of water lower the water table and reduce the flow of prior wells, must restore the pressure or bear the expense of replacing the water of prior appropriators.

All of the wells and springs belonging to the parties are on a single broad alluvial fan, which slopes westward from the Wasatch Mountains, in north Juab Valley. The valley is bounded on the east by those high and rugged mountains, including Mount Nebo, which dominates the area from its 12,000 foot height, and on the west by a lower range referred to as the West Mountains; it is closed at the south end by the Levan Ridge and on the north by a natural ridge.

The alluvial fan on the east side of the valley is built of sands and gravels which have been carried from the mountains by streams and water drainage over many thousands of years; and similar materials deposited there by the currents of Lake Bonneville, which covered the valley at one time. These relatively loose materials become saturated as moisture seeps into the ground from the heavy snow and rainfall in the mountains, and readily carry the moisture beneath the surface downward toward the water basin in the center of the valley. These strata and the basin itself are the sources of the waters with which we are concerned.

Fowkes are owners of 11 artesian wells and one spring which are located well up eastward on the alluvial fan and toward its northern part: the use is for domestic purposes and for irrigation of approximately 115 acres of land. Their rights rest upon claims filed in the State Engineer's office ranging in priority from 1902 to 1922. In addition thereto, Fowkes claim the right to water from springs and seeps or subirrigation of certain lower pasture lands, which use antedates the Water Filing Act of 1903.

Andrews are the owners of a spring and five flowing wells located roughly one-half mile southeast of the Fowkes wells and therefore higher on the fan, which are used to irrigate about 150 acres of land. They date to 1915 or before but are later in priority than the Fowkes wells. Andrews also own the right to use water from a number of seeps and springs which irrigate meadow land and which also have been so used since before 1903. They have further initiated a claim as of March 14, 1950, for a pump well which produces six second feet of water. This was by application to the State Engineer and use is permitted only during the irrigation season.

Current Creek Company's main water source is known as Mona Reservoir, which lies at the center of the valley near its north end. The water is transported about 12 miles to the south for irrigation. The company has also initiated a claim to appropriate 18 second feet of underground water to be pumpsed from three wells near the reservoir to augment its supply. However, when these wells were drilled they did not produce the anticipated flow, and Current Creek applied for and received approval from the State Engineer to change the location of these wells eastward and higher up on the fan, and to add two additional wells. Thereafter Current Creek contracted with Andrews to permit the drilling of two wells on the latter's property. The new wells produced a better flow of water. The priority date of application for these wells is 1951, although they were not drilled until 1954. They flow by natural pressure about 2.74 second feet of water and are allowed to flow during the entire year for storage in the Mona Reservoir.

This basin upon which all of the wells are situated is classified as a sensitive 'cone of influence,' because the wells readily affect each other. That is, when the Andrews' pump well is started, the water level drops and the pressure ceases in Andrews' other wells, and in the wells owned by Fowkes; when the pump well is turned off the level pressure rises in the others. Opening and closing the Current Creek Company's wells has the same, although somewhat less, effect. The evidence indicates that the hydrostatic pressure in the Fowkes' and Andrews' flowing wells decreased from about 11 feet above ground in the beginning of 1953 to about 8.5 feet below ground in October, 1956. During the summer of 1956, studies by the State Engineer and the U. S. Geological Survey showed that operation of the Current Creek Company's wells diminished the flow of other wells in the area.

When the operation of the Current Creek wells resulted in stopping the flow in the Fowkes' and Andrews' flowing wells, which had never occurred before, Andrews closed the Current Creek wells on their land and insisted that they be kept closed or damages paid. This is in accordance with Andrews contention as to the terms of their contract. Current Creek's rejoinder is that it was not their wells, but Andrews' own pump well that depleted the Andrews' and Fowkes' flowing wells, and they also assert that Andrews and Fowkes have no absolute rights to artesian pressure, but must use reasonable means and pumping equipment to get their water.

The summation of the various charges and countercharges the parties make against each other is that each insists upon, and seeks to have declared, its absolute rights to obtain the water it claims, without interference from the other, and asks injunctive relief to protect such claimed rights. Attack is also made upon the action of the State Engineer in allowing CurrentCreek to change locations of its wells which was done over the protest of both Andrews and Fowkes.

The trial court found that the relative time priorities of the parties to the water in the basin were: (1) springs owned by Andrews and Fowkes, (2) the flowing wells of Andrews and Fowkes, (3) the Andrews' pump well, and (4) the Current Creek Company wells. It declined to determine priority as to the other water sources, including a railroad well, and certain seeps in the lower valley; and we think correctly so because the evidence with respect thereto was inconclusive. The court found that there is unappropriated water within the basin and therefore affirmed the State Engineer's approval of the change of location of the wells of Current Creek Company; as to Andrews' act in closing the Current Creek wells, it issued a decree enjoining them from interfering therewith, based upon the fact that matters as to administration and distribution of water are by statute vested in the State Engineer.

The court further found that the pump wells of both Andrews and Current Creek interfered with the flow of the flowing wells of Andrews and Fowkes. As to Andrews, it refused to find that the interference in their flow well was caused by the Current Creek wells, as distinguished from the effect caused by their own pump well, and therefore refused to allow them any redress. The decree required Andrews and Current Creek Company to replace for Fowkes 1.775 second feet of water during the irrigation season and 27.11 gallons of water per minute during the nonirrigation season to be supplied by furnishing and installing pumps and sources of power, the cost to be shared equally between them. It further prohibited Andrews and Current Creek from using their pump wells and required them to desist from pumping water until and unless they replaced the water to Fowkes as just stated. The court, however, refused to grant damages to Fowkes on the ground that they failed to prove damages and failed to mitigate any damage that might have inured to them.

Prior appropriators of this underground water who have beneficially used it through the natural flow of springs or artesian wells are entitled to have the subsequent appropriators restrained from drawing the water out of and lowering the static head pressure of this underground basin unless they replace the quantity and quality of the water by pumping or other means to the prior appropriators at the sole cost of the subsequent appropriators. The same rule should apply to all junior appropriators present and future. They can appropriate water to a beneficial use from the underground basin if it is available but they must replace the flow of the wells and springs at the prior appropriator's place of diversion solely at their own cost. ¹ Although, as usual in such cases, the facts are very complicated, the effect of the judgment is in accordance with the above statements of the law and such judgment is affirmed.

There can be no doubt that the above is a correct statement of the rules governing this situation. Section 73-3-23, U.C.A.1953, expressly...