Estate of Steed Through Kazan v. New Escalante Irr. Co.

• Decision Date: 18 August 1992
• Docket Number: No. 890426,890426
• Citation: 846 P.2d 1223
• Parties: The ESTATE OF Paul STEED Through its administratrix Mary KAZAN, Plaintiff and Appellant, v. The NEW ESCALANTE IRRIGATION CO., Defendant and Appellee.
• Court: Utah Supreme Court

Page 1223

846 P.2d 1223

The ESTATE OF Paul STEED Through its administratrix Mary

KAZAN, Plaintiff and Appellant, v. The NEW ESCALANTE IRRIGATION CO., Defendant and Appellee.

No. 890426.

Supreme Court of Utah.

Aug. 18, 1992.

Rehearing Denied March 4, 1993.

L.R. Gardiner, Richard Ruckenbrod, Salt Lake City, for Estate of Steed and Mary Kazan.

Edward W. Clyde, Steven E. Clyde, Salt Lake City, for New Escalante.

HOWE, Associate Chief Justice:

Plaintiff Mary Kazan, the administratrix for the Estate of Paul Steed (hereinafter Steed), sought a decree compelling defendant New Escalante Irrigation Company to replace the amount of runoff and seepage water that Steed lost when New Escalante changed its method of water application. The trial court declined to grant the decree, and Steed appeals. We are called upon to determine the law applicable when the use of new technology impacts long-established patterns of water use.

I. FACTS

This case involves the use of water in Alvey Wash, which is south of the town of Escalante in Garfield County. The wash is shaped like a horseshoe opening to the south, with one prong of the wash coming from the southwest and the other prong going to the southeast. Escalante is located immediately north of the bend in the horseshoe. The inside of the southwest prong is bordered by tall and impenetrable cliffs. The land inside the horseshoe slopes gently from the base of the east side of those cliffs across the middle of the horseshoe toward the east prong. A substantial part of that land has been irrigated for over one hundred years with water diverted from the Escalante River, which runs north of Escalante in a generally west to east direction, and with water taken from the southeast prong of the wash. The Escalante River is a tributary to the Colorado River. New Escalante's diversions are the last diversions from the Escalante River for irrigation in Utah. The unused water flows to Lake Powell on the Colorado River.

Alvey wash is a natural watershed, with a drainage area of about 102 square miles. It empties into the Escalante River about 25 miles downstream from the irrigated lands of Steed and New Escalante's shareholders. However, the Escalante River does not naturally contribute any water to Alvey Wash. New Escalante has historically delivered diverted water to the lands of its shareholders through open canals. The shareholders applied the water to their lands by flood-type irrigation. Some of their lands drain toward Alvey Wash, and consequently, runoff and seepage water reached the wash, where it commingled with the natural flow in the wash.

In 1982, New Escalante changed its irrigation system from flood irrigation to a pressurized sprinkler system of enclosed pipes. The open ditches and canals previously used were abandoned. The new system is much more efficient and has substantially diminished the runoff and seepage water which reaches Alvey Wash.

Steed owns a decreed water right in Alvey Wash from which it irrigates its lands. It contends that it had a vested right to receive the same amount of runoff and seepage flow to the wash. It characterizes itself as a downstream water user in the same river system affected by changes made by an upstream user. Steed sought an injunction, a replacement order, and money damages. The trial court held that because there was no natural contribution of water from the Escalante River to the wash, Steed had acquired no vested right, either by appropriation, by adverse use, or otherwise, to compel New Escalante to continue to let the same amount of water run off or seep from the lands of its shareholders into the wash.

II. VESTED RIGHT

Utah, along with the majority of western states, follows the appropriation doctrine: First in time, first in right for beneficial use is the basis of the acquisition of water rights. Gunnison Irrigation Co. v. Gunnison Highland Canal Co., 52 Utah 347, 174 P. 852 (1918).

In a long line of cases dating from 1912, this court has dealt with the rights of water users in runoff and seepage water from higher ground. In Garns v. Rollins, 41 Utah 260, 125 P. 867 (1912), waste or percolating water from the irrigation of the plaintiff's land ran into a ditch from which the defendant irrigated his adjoining land. The plaintiff brought an action to determine the title and the right to use the runoff irrigation water. The trial court held that the plaintiff was entitled to as much of that water as she could put to beneficial use. On appeal, we reversed and held that the plaintiff had the absolute right to all of the waste water which she could capture before it ran off her land. We stated:

The law is well settled, in fact the authorities all agree, that one landowner receiving waste water which flows, seeps, or percolates from the land of another cannot acquire a prescriptive right to such water, nor any right (except by grant) to have the owner of the land from which he obtains the water continue the flow.

41 Utah at 272, 125 P. at 872. In Garns, we quoted approvingly the following statement from 1 Samuel C. Weil, Water Rights in the Western States 54 (3d ed. 1911): "Waste water soaking from the land of another after irrigation need not be continued, and may be intercepted and taken by such original irrigator, and conducted elsewhere, though parties theretofore using the waste are deprived thereof." Garns, 41 Utah at 273, 125 P. at 872. Seven years later, in Stookey v. Green, 53 Utah 311, 178 P. 586 (1919), we cited Garns for the holding that "the run-off, waste, and seepage from irrigation are not subject to appropriation as against the owner of the land irrigated who desires to recapture it and apply it on his own land." 53 Utah at 319, 178 P. at 589.

The question as to what rights one can acquire in water that wastes or seeps from the land of another arose again in Smithfield West Bench Irrigation Co. v. Union Central Life Insurance Co., 105 Utah 468, 142 P.2d 866 (1943). On the second appeal in that case, 113 Utah 356, 195 P.2d 249 (1948), this court gave a clear answer to that question:

It is well established under the authorities cited in our previous opinion that waters diverted from a natural source, applied to irrigation and recaptured before they escape from the original appropriator's control, still belong to the original appropriator. If the original appropriator has a beneficial use for such waters he may again reuse them and no one can acquire a right superior to that of the original appropriator.

113 Utah at 363, 195 P.2d at 252-53.

Three years later, in Lasson v. Seely, 120 Utah 679, 238 P.2d 418 (1951), the plaintiff owned water rights in Panawats Slough, which was fed in part by runoff irrigation water from the defendant's higher land. Once again, following the precedent set in earlier cases, this court wrote:

We therefore do not agree with plaintiff's contention that defendant or others using irrigation waters as upper appropriators cannot utilize water more efficiently in the future than in the past, if such future use would diminish the quantity of surplus or waste water which has heretofore found its way into the slough through surface drainage or by percolation. The plaintiff cannot compel defendant or others to waste water nor to forego a water turn to build up the flow of Panawats slough....

....

The defendant is not precluded from changing the type or quantity of vegetation on his land, although by so doing less water may find its way into Panawats slough through percolation.... The decree of 1894 on which plaintiff relies, merely awarded the entire flow of Panawats slough to plaintiff's predecessor in title. It did not preclude more efficient use of the water by upper appropriator nor require upper appropriators to send any quantities of water into Panawats slough. The decree does not compel any upper appropriator to waste water nor to leave a surplus of water to drain into the slough. Nor could the decree direct the upper appropriators as to how they should utilize the water which they are entitled to use.

120 Utah at 689, 238 P.2d at 422-23.

One year later, in McNaughton v. Eaton, 121 Utah 394, 242 P.2d 570 (1952), this court addressed a dispute in which a natural wash was adjacent to irrigated land. Water accumulated in the wash from three sources: (1) natural waterways; (2) excess water diverted out of a nearby canal; and (3) waste water from irrigated lands on both sides of the wash. This court held that all three of these water sources were subject to reappropriation from the wash, but warned that the reappropriator acquired no rights as against the original appropriator to have the waste water continue to escape to the wash. We stated that the reappropriator of such water cannot require the first appropriator to continue to waste such water so that it will be available for use by the reappropriator. As long as the original appropriator has possession and control thereof, he may sell or transfer the right to the use of such waters to someone other than the reappropriator as long as he does so in good faith and they are beneficially used, or he may recapture and use them for further beneficial use if he does so before they get beyond his property and control.

121 Utah at 403-04, 242 P.2d at 574.

In two later cases, we again recognized and restated the rule that an upstream irrigator had the right to completely consume all the water it diverted by using it over and over again. However, in each case we carved out an exception to the general rule specific to the fact situation before the court. In East Bench Irrigation Co. v. Deseret Irrigation Co., 2 Utah 2d 170, 271 P.2d 449 (1954), we held that the rule did not apply when the runoff or waste water returned to the stream from which it was originally diverted. We quoted from Wells A. Hutchins, Selected Problems in the Law of Water Rights in the West 362-68 (1942):

Appropriations may generally be made of waste water which...