Lehmitz v. Utah Copper Co.

• Decision Date: 14 March 1941
• Docket Number: No. 2193.,2193.
• Citation: 118 F.2d 518
• Parties: LEHMITZ v. UTAH COPPER CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

118 F.2d 518 (1941)

LEHMITZ v. UTAH COPPER CO. et al.

No. 2193.

Circuit Court of Appeals, Tenth Circuit.

March 14, 1941.

Charles M. Morris, of Salt Lake City, Utah (Wm. L. Beezley and Sidney G. Reid, both of Salt Lake City, Utah, on the brief), for appellant.

C. C. Parsons, of Salt Lake City, Utah (Wm. M. McCrea, of Salt Lake City, Utah, on the brief), for appellees.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Conflicting claims are involved predicated upon appropriations of water from Bingham Creek in Utah. The water of all streams and other sources in that state is the property of the public, subject to existing rights to the use thereof. Section 100-1-1, Revised Statutes Utah 1933. Beneficial use is the basis and measure of rights to the use of water, § 100-1-3. Rights to unappropriated water may be acquired by appropriation in the manner provided in the statutes, and not otherwise. And the one first in time is first in right, § 100-3-1. One eligible to acquire unappropriated public water shall submit an application to the state engineer containing certain requisite information. If the proposed use is for irrigation, the application shall show the legal subdivisions of the land proposed to be irrigated, the total acreage, and the nature of the soil; and if it is for milling or mining, the application shall show the name of the mill and its location or the name of the mine and the mining district in which it is situated, and the place of diversion and return of the water shall be designated, § 100-3-2. The point of diversion may be changed, and water may be used for other purposes than those for which it was originally appropriated. But no such change shall be made if it impairs a vested right, without just compensation, and it can be made only on application to and approval by the state engineer. One holding an approved application for the appropriation of water may in like manner change the point of diversion, or purpose of use, § 100-3-3. An application for such change is to be treated as a corrected application, and the change shall not affect the priority of the original application, § 100-3-5. The application for an appropriation, with the approval or rejection of the engineer endorsed thereon, shall be returned to the applicant. If it is approved, the engineer shall require in the endorsement that actual construction shall begin within six months, and shall state the time within which it shall be completed and the time within which water shall be applied to beneficial use, § 100-3-10. But extensions of time not exceeding fourteen years may be granted upon proper showing of diligence or reasonable cause for delay, § 103-3-12. Upon it being made to appear to the satisfaction of the engineer, after published notice and proof, that an appropriation has been perfected, and that the water appropriated has been applied to beneficial use, he shall issue a certificate, in duplicate, setting forth the name and address of the person by whom such water is being used, the quantity in acre feet or the flow in second feet, the purpose for which it is used, the stream or source of supply, the date of the appropriation, and such other information as will fully define the conditions, § 100-3-17. With certain exceptions having no application here, the priority of an application shall be determined by the date on which the written application was received in the office of the engineer, § 100-3-18; and appropriators shall have priority among themselves according to the dates of their respective appropriations, each appropriator being entitled to receive his entire supply before another subsequent or junior to him has any right, § 100-3-21.

In June, 1933, Utah Copper Company, a mining corporation, filed with the state engineer the first application in suit. It was for the appropriation of 30 second feet of water to be used in the precipitation of minerals. After certain corrections had been made, the engineer approved the application in March, 1934, and fixed September 15, 1936, as the time within which the appropriation should be fully completed. The application is now owned by Kennecott Copper Company, a mining corporation. In March, 1936, an application was filed with the engineer for authority to change the point of diversion, and for a change in the use of the water. The application recited that it was desired to use the water for the precipitation of copper and other minerals, for all other uses incident or desirable in the conduct of such precipitation, operations, and for the irrigation of lawns, flowers, shrubbery and gardens in the vicinity of Copperton. The precipitation plant and diversion works were virtually completed and placed in use in April; and about the middle of May all of the water of the stream — never exceeding 11.4 second feet — was diverted, used in the plant for the precipitation of minerals, passed to a so-called poison ditch and carried away from the Bingham Canyon watershed. In February, 1937, the engineer approved the application for authority to make the proposed changes in point of diversion and in use of the water, and he subsequently extended to September 15, 1940, the time for filing proof that the appropriation had been perfected. The water of certain springs was suitable for irrigation purposes. About ninety per cent of such springs were located in the bed in Bingham Creek. The course of the creek was changed past the springs, and the water from them was thus segregated and used for the irrigation of lawns, flowers, shrubbery and gardens in the village of Copperton in accordance with the authority granted by the engineer.

In April, 1934, William Lehmitz, Jr., filed with the engineer the other application in question. It was for one second foot of water to be used between April 1 and October 25, of each year, for irrigating 49.48 acres of farm land. The point of diversion fixed in this application was six or seven miles below that fixed in the earlier application of Utah Copper Company. Utah Copper Company protested its allowance. The protest was disallowed, and in March, 1935, the application was approved and returned to the applicant. But in denying the protest and approving the application, the engineer advised the parties in writing that the issue was whether there was unappropriated water in the creek; that he lacked facilities with...