IN RE GENERAL DETERMINATION OF THE RIGHTS TO USE OF ALL WATER, 960299.

• Decision Date: 23 April 1999
• Docket Number: No. 960299.,960299.
• Citation: 1999 UT App 39,982 P.2d 65,1999 UT 39
• Parties: In the Matter of the GENERAL DETERMINATION OF the RIGHTS TO the USE OF ALL the WATER, BOTH SURFACE AND UNDERGROUND, WITHIN the DRAINAGE AREA OF UTAH LAKE AND JORDAN RIVER IN UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE AND JUAB COUNTIES IN UTAH. Captola C. Murdock, Jane C. Hinckley, Russell N. Stansfield, Lyle D. Hatch, Melvin L. Whiting, David and Ruth M. Fuller, William C. and Paula O. Jones, and A. Bert and Julia A. Cherrington, Plaintiffs and Appellants, v. Springville Municipal Corporation, Defendant and Appellee.
• Court: Utah Supreme Court

982 P.2d 65

1999 UT 39

1999 UT App 39

In the Matter of the GENERAL DETERMINATION OF the RIGHTS TO the USE OF ALL the WATER, BOTH SURFACE AND UNDERGROUND, WITHIN the DRAINAGE AREA OF UTAH LAKE AND JORDAN RIVER IN UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE AND JUAB COUNTIES IN UTAH.

Captola C. Murdock, Jane C. Hinckley, Russell N. Stansfield, Lyle D. Hatch, Melvin L. Whiting, David and Ruth M. Fuller, William C. and Paula O. Jones, and A. Bert and Julia A. Cherrington, Plaintiffs and Appellants, v.Springville Municipal Corporation, Defendant and Appellee.

No. 960299.

Supreme Court of Utah.

April 23, 1999.

Rehearing Denied August 6, 1999.

Paul M. Durham, J. Mark Gibb, Salt Lake City, for plaintiffs.

Jan Graham, Att'y Gen., Michael M. Quealy, John H. Mabey, Jr., Ass't Att'ys Gen., Dallin W. Jensen, Lee E. Kapaloski, Paul D. Veasy, James E. Karkut, Salt Lake City, for defendants.

ZIMMERMAN, Justice:

¶ 1 This matter is before us as two separate appeals from two separate but parallel proceedings that involve the same parties and the same subject matter.Factually, this case involves a dispute between several water users ("petitioners") and the city of Springville.¹The petitioners are all water rights holders.They own land in Springville and hold diligence rights to waters from a source in Spring Creek Canyon Creek ("Spring Creek").Although the record is less than clear, it seems that the petitioners are all successors in interest to A.W. Cherrington("Cherrington").For descriptive clarity, we will therefore refer to the petitioners as the "Cherrington successors."Cherrington held diligence rights to water from this Spring Creek source dating back to the mid-nineteenth century, but he lost use of water from that specific source early in this century when Springville took it for its municipal water works.In exchange, Cherrington began receiving substitute water from a different source through the Highline Ditch (alternatively known as the "Highline Canal").In essence, the Cherrington successors contend that they are entitled not to water from different sources in quantities equal to the diligence rights Cherrington held in Spring Creek, but to water from Spring Creek itself.They challenge the entitlement of Springville to the water of Spring Creek that has been diverted into the municipal water system for more than sixty years.

¶ 2 The Cherrington successors and Springville have been locked in this dispute for many years, first as part of an ongoing general water adjudication pertaining to all the waters of Utah Lake and its tributaries, and then as part of a separate proceeding brought pursuant to Utah Code Ann. § 73-4-24("section -24") by the Cherrington successors in an attempt to break the Spring Creek issues out from the general adjudication and accelerate their determination.Today, we address an interlocutory appeal from the general adjudication resolving issues against the Cherrington successors and an appeal dismissing the separate section -24 proceeding.The parties raise many issues.We find it necessary to address only the following allegations of trial court error: (i) the grant of partial summary judgment to Springville in the general adjudication; (ii) the denial of the Cherrington successors' motion to reconsider the partial summary judgment based on new evidence; (iii) the grant of Springville's motion to strike the first and second affidavits of Robert Murdock; and (iv) the grant of Springville's second motion to dismiss the Cherrington successors' section -24 petition.We decide each point against the Cherrington successors except that we reverse the grant of partial summary judgment to Springville as it relates to all the Cherrington successors except Captola Murdock.

¶ 3This case has a long and convoluted history.Both the Cherrington successors and Springville claim water rights in Spring Creek dating back to the mid-nineteenth century.In 1911, Springville began development of its municipal water works and began taking water out of Spring Creek for those works; it traded water from Burt Springs for water of Spring Creek.In 1918, Springville began taking additional water from Spring Creek and replacing it with water from Hobble Creek.This was the trade that affected Cherrington.He lost his Spring Creek water and began receiving water from Hobble Creek in its place.The switch from Spring Creek to Hobble Creek sources was gradual and was completed by 1935.Springville delivered water from Hobble Creek to those individuals who had water rights in Spring Creek, including Cherrington, through the Highline Canal.

¶ 4 In 1936, Salt Lake City brought an action against approximately 2,430 defendants to determine water rights in Utah Lake and its tributaries.This court converted the suit into a general adjudication in 1944, which is still pending.SeeSalt Lake City v. Anderson,106 Utah 350, 362, 148 P.2d 346(1944).In 1961, Judge Maurice Harding of the Fourth District Court adjudicated a dispute between Springville and, inter alia,Captola Murdock within the context of the general adjudication.It was entitled W. Blaine Murdock and Captola C. Murdock, plaintiffs v. The City of Springville, a municipal corporation and Springville Irrigation Co., a Utah Corporation, defendants,Civil No. 22850.Judge Harding's ruling is hereinafter referred to as the "Harding decree."The meaning of the Harding decree is at issue in this case and it will be discussed at length.

¶ 5 In 1986, as part of the general adjudication, the State Engineer issued his Proposed Determination of Water Rights in Utah Lake and Jordan River Drainage Area, Spanish Fork River Subdivision, Hobble Creek-Springville Subdivision, Code 51, No. 4("Proposed Determination") which purported to describe water rights in the Springville-Hobble Creek drainage, including the respective rights of the Cherrington successors and Springville.An extensive struggle ensued in two separate but parallel proceedings.

¶ 6 First, in the general adjudication, both Springville and the Cherrington successors filed objections to the Proposed Determination.In response to the objections, the State Engineer issued a 1992 Addendum to the Proposed Determination (hereinafter "Addendum").The Cherrington successors then filed their objections to the Addendum, and Springville filed its response.In 1995, Springville filed a motion for partial summary judgment in the general adjudication.The motion was based on the claim that the principles of res judicata require the validation of the water rights of Springville that were adjudicated by the Harding decree and set forth in the State Engineer's Addendum.The Cherrington successors filed a memorandum in opposition to Springville's motion for partial summary judgment and an affidavit of Robert Murdock.Springville submitted a motion to strike the affidavit of Robert Murdock.In June of 1996, the trial court granted both Springville's motion to strike the Murdock affidavit and its motion for partial summary judgment.The court found that res judicata applied because the "State Engineer was obligated to apply the Harding Decree to the water rights of Murdock and Springville under Utah Code Ann. § 73-4-11(1953)."

¶ 7 In November of 1996, the Cherrington successors filed a motion for partial summary judgment and a motion to reconsider the partial summary judgment granted to Springville in June of 1996.Both Springville and the State Engineer opposed the Cherrington successors' motions.In March of 1997, the trial court denied both of the Cherrington successors' motions.It found that the Cherrington successors "failed to present any new evidence or any evidence to justify their Motion to Reconsider" and that they"failed to establish any basis to reverse the Court's Order Granting Motion of Partial Summary Judgment" to Springville.The Cherrington successors sought an interlocutory appeal which we granted.It is one of the two appeals consolidated before us today.

¶ 8 While all this was going on in the general adjudication, the Cherrington successors also sought relief through parallel processes.In April of 1992, they filed a Petition for the Determination of Disputes Between the Petitioners and the Defendant Involving Less than all Parties to this Suit, pursuant to section -24.Springville filed a motion to dismissthe section -24 petition.Springville argued that the State Engineer had already addressed the specific water issues raised by the petition in the Addendum filed in the general adjudication.The trial judge dismissed the section -24 petition and ordered the Cherrington successors to proceed with their objections to the State Engineer's Addendum in the general adjudication.

¶ 9 The Cherrington successors appealed the dismissal to this court, arguing that the general adjudication had been proceeding for decades and might continue for additional decades.To force them to adjudicate their issues in the general adjudication would be to effectively deny them relief.We heard the matter and issued our opinion in Murdock v. Springville Municipal Corp.,878 P.2d 1147(Utah1994).We reversed the dismissal of the section -24 petition and remanded the case to the district court to make a determination as to whether it could hear the objections to the Addendum with reasonable promptness in the general adjudication.Seeid. at 1150.If the trial court concluded that it could resolve the issues raised in the section -24 petition with reasonable promptness, then it would not abuse its discretion in dismissing the section -24 petition.Seeid.

¶ 10 Following the remand, Springville filed its second motion to dismissthe section -24 petition.It argued that the issues raised in the section -24 petition and in the Cherrington successors' objections to the Addendum in the general adjudication were identical and that these issues could be resolved with reasonable promptness in a hearing in the...