East Bench Irr. Co. v. Deseret Irr. Co., 7990

• Citation: 2 Utah 2d 170,271 P.2d 449
• Decision Date: 28 May 1954
• Docket Number: No. 7990,7990
• Parties: d 170 EAST BENCH IRR. CO. et al. v. DESERET IRR. CO. et al.
• Court: Supreme Court of Utah

Page 449

271 P.2d 449

2 Utah 2d 170

EAST BENCH IRR. CO. et al. v. DESERET IRR. CO. et al.

No. 7990.

Supreme Court of Utah.

May 28, 1954.

E. R. Callister, Jr., Atty. Gen., Robert B. Porter and John W. Horlsey, Salt Lake City, Nephi J. Bates, Richfield, Dudley Crafts, Delta, Sam Cline, Milford, Ferdinand Erickson, Richfield, Marr, Wilkins & Cannon, Richard H. Nebeker, Salt Lake City, for appellant.

Wilford M. Burton, and Paul Reimann, Salt Lake City, for respondent.

WADE, Justice.

What vested rights do the lower water users of a river system have which may not be impaired under section 73-3-3, U.C.A.1953, ¹ by a change in the place of diversion or place or nature of use by the higher users of the waters of such system? This is the main question presented by this appeal.

Plaintiffs, respondents here, consist of 23 different water users on the south fork of the Sevier River. Each of them is an individual, association or corporation which owns or operates an irrigation canal system which diverts and uses water from such river system above the Kingston measuring station, located just above the Piute reservoir. Most of these waters are used in Circle and Panguitch Valleys high in the mountain head-waters of that river system and all of them are used between the Kingston measuring station and the Hatch Town Damsite, a distance of about 42 miles. Circle and Panguitch Valleys in places are about 5 miles wide and near the river the lands are somewhat flat and marshy so that in places cattails grow but most of such lands grow native meadow grasses.

Each plaintiff filed an application in the Office of the State Engineer for a change in place of diversion and use of its waters. They propose to jointly construct a dam at the Hatch Town Damsite to store about 13,650 acre feet of their fall, winter and early spring waters for use on their lands in the late summer months. Also, three of the plaintiffs propose to irrigate 5,000 acres of new lands which they own on the east side of Panguitch valley between one and a half and three miles from the river and beyond the lands now irrigated.

During 1906 to 1909 the state constructed a reservoir at the Hatch Town Damsite together with the Old State Ditch to store and convey water for the irrigation of these new lands. The state contracted to sell such lands to new settlers who occupied, cultivated and irrigated them but in May, 1914, the dam washed out and has not been replaced, the settlers abandoned the land which reverted to the state and since then has grown only sage brush and wild grass without irrigation. Plaintiffs claim no right to store and use water on these lands because water was previously stored and used to irrigate them. They only claim the right to change the diversion from the head of their canals to this reservoir and the head of the Old State Ditch, and to change the use of this water which has in the past only been used as a direct flow right onto their lands to a right of storage in the reservoir and later use on the lands where they have been previously used and also to use them to irrigate these 5,000 additional acres of new lands.

In 1936 the Cox Decree made a general adjudication of all the rights to the use of the waters of this river system. It awarded to plaintiffs when available the right to use 74 cubic feet of water per second from November 1st to March 31st and 337.86 second feet from April 1st to October 31st. By their applications plaintiffs claim only the right to irrigate about 14,000 acres but their evidence tends to show that they irrigate about 24,000 acres, about 10,000 acres of which is water-logged meadow lands. They claim the right to use the full quantity of water awarded to them during all seasons of the year for storage in the reservoir to be constructed, for irrigation of their lands which are presently irrigated and for irrigation of the new lands, as they see fit, even though such use decreases the quantity of water now available for the use of the lower water users. But even if by these changes they may not decrease the quantity of water available for the lower users they claim and their evidence tends to show that they can save sufficient water by use of the reservoir and lowering the water table in the meadow lands so that the lower water users will receive fully as much water if not more than they would under the present system.

The defendants, appellants here, are all of the water users on the Sevier river system below the Kingston measuring station. On their protest, the State Engineer rejected all of the applications because he found that their approval would enlarge the plaintiffs' rights, adversely affect defendants' existing rights and make an impossible distribution problem. Plaintiffs appealed from that decision by bringing these actions in the district court. The cases were consolidated for trial and the court reversed the Engineer's decision, approving the applications on condition that during the period from November 15th to March 15th any applicant storing water in the reservoir shall not at the same time divert water into his canal, that during the period from March 16th to November 14th the yield of the river at Kingston Measuring Station shall be maintained as it would have been under similar periods of time in previous similar years, that computation of the water to be delivered at Kingston shall be made in periods from March 16th to June 15th, from June 16th to September 15th and from September 16th to November 14th, and that the plaintiffs and not the State Engineer and the water commissioners shall have the responsibility of seeing that defendants get their full water rights at Kingston. Defendants appeal from this decision.

The head waters of the south fork of the Sevier River travel about 225 miles. It is the longest river system completely within this state. The south fork begins in the high mountains on the north side of Kane County near the southern boundary of the state and flows slightly east of north surrounded by valleys and canyons between high mountain ranges through Garfield, Piute and Sevier counties. It then circles toward the west through the southwest corner of San Pete County where it emerges out of the mountainous country into the Sevier Desert and into Juab County near the Sevier Bridge Reservoir. From there it continues circling toward the west through the southeast corner of Juab County into Millard County, flowing in a southwesterly direction until it is completely consumed by storage reservoirs and irrigation about 75 miles below the River Bridge Reservoir and before it reaches Sevier Lake where it used to empty. Since 1916 when the last enlargement of the Sevier Bridge Reservoir was completed, except for the years of 1922, 1942 and 1946, all of the waters yielded by this river system have been used except the holdover waters in the reservoirs. Only a small amount was turned loose in 1922 and 1942 and about 23,000 acre feet in 1946. About 10,000 acre feet of that was used for early irrigation and the rest was not used. This was brought about because the United States created a farm project for displaced Japanese at Abraham and purchased 20,000 acre feet of water in the Sevier Bridge Reservoir which it failed to use but stored and allowed to accumulate in the reservoir from year to year until in 1946 an early heavy runoff of water under those conditions filled the reservoir, thus necessitating the loss of this water.

From Panguitch Valley to Sevier Lake there are thousands of acres of land suitable for cultivation and irrigable from this river, which are uncultivated because of the scarcity of water. In the Sevier Desert only a small portion of the lands suitable for cultivation which could be irrigated from this river system if there were enough water are now cultivated and irrigated and there are many thousands of acres which were once cultivated and irrigated from this system which have been abandoned and reclaimed by the desert because of the scarcity of water. This is different from the situation in most streams of this state where there is usually a substantial spring runoff. If this change has the effect of cutting off a part of the supply of water now available for the use of the lower water users it will mean that more cultivated land will be reclaimed by the desert.

Above the Servier Bridge Reservoir the canyon walls and the valleys slope from the mountain ranges on each side toward the river and all the water which falls within this river's water shed and the waters which are applied on the lands on both sides quickly find their way back to the river, either by direct surface streams or underground seepage. Thus much of the water of this river system is used over and over for irrigation. There are many tight dams along the river which divert the entire flow but in a short distance water rises in the river bed and soon the stream develops into substantial proportions. Below the Sevier Bridge Reservoir after the water is used to irrigate land it is drained either back into the river or onto lower lands and used over again until it is completely consumed. So if this change deprives the lower users of the use of any water which they would have had if the change were not made it will directly deprive lower water users of the use of vitally needed water.

There are many storage reservoirs in this river and its tributaries but none of them store the waters of the south fork above Kingston. The Sevier Bridge Reservoir is the largest and the Piute Reservoir next. The river flows about a hundred miles between them at first through canyons and then through the fertile long Sevier Valley. The Sevier Bridge Reservoir has a storage capacity of 235,962 acre feet. It was commenced in 1902, and began storing up to the 60 foot level in 1912, and finally completed to the 90 foot level in 1916; it supplies water to reclaim 70,000 acres of land. The Piute Reservoir was...