Little Cottonwood Water Co. v. Kimball

• Decision Date: 05 March 1930
• Docket Number: 4707
• Citation: 289 P. 116,76 Utah 243
• Court: Utah Supreme Court
• Parties: LITTLE COTTONWOOD WATER CO. v. KIMBALL et al

289 P. 116

76 Utah 243

LITTLE COTTONWOOD WATER CO. v. KIMBALL et al

No. 4707

Supreme Court of Utah

March 5, 1930

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by the Little Cottonwood Water Company against Leland H Kimball and another. Judgment for plaintiff, and defendants appeal.

Reversed in part, with directions, and affirmed in part.

C. W Morse and Critchlow & Critchlow, all of Salt Lake City, for appellant Kimball.

George P. Parker, Attorney General for appellant state engineer.

Fabian & Clendenin, of Salt Lake City, for respondent.

Shirley P. Jones, City Attorney, Carl A. Badger, and Rich & Rich, all of Salt Lake City, amicus curiae.

CHERRY, C. J. EPHRAIM HANSON, J., concurs. ELIAS HANSEN, J., BRAMEL, District Judge, STRAUP, J., concurring in part and dissenting in part. FOLLAND, J., being disqualified, did not participate.

OPINION

CHERRY, C. J.

In 1925 appellant Kimball made an application to the state engineer, under Laws Utah 1919, c. 67, § 42, to appropriate ten second feet of water from Little Cottonwood creek, a natural stream of water in Salt Lake county, and a further application, under Laws Utah 1919, c. 67, § 9, as amended by Laws Utah 1921, c. 72, for permission to turn ten second feet of water which he proposed to bring from Utah Lake into the channel of Little Cottonwood creek and to divert an equal quantity of water from the channel at a point above. For convenience, the applications are designated "the application to appropriate" and "the application to exchange," respectively.

The plaintiff Little Cottonwood Water Company, a prior appropriator of water of Little Cottonwood creek, filed protests with the state engineer against both applications. The protest against "the application to appropriate" was that there was no unappropriated water in the source, and "the application to exchange" was opposed because the proposed exchange would deteriorate the quality of the original water of Little Cottonwood creek. The state engineer, notwithstanding the protests, approved both applications. To review the action of the state engineer and by way of appeal the plaintiff brought this action in the district court of Salt Lake county. See Laws Utah 1919, c. 67, § 54. The district court tried the issues, made findings, and rendered a judgment that both applications be disapproved and denied. From the judgment thus rendered, the applicant, Kimball, and the state engineer have appealed. The appeal here is upon the judgment roll, which contains the pleadings, findings, and judgment, but not the evidence. It is contended by the appellants that upon the findings made both applications should be ordered approved.

We first consider "the application to appropriate." The ultimate question is whether the order rejecting the application should be sustained upon the grounds that there is no unappropriated water in the proposed source. The statute (Laws Utah 1919, c. 67, § 48) provides:

"Where there is no unappropriated water in the proposed source of supply, or where the proposed use will conflict with prior applications or existing rights * * * it shall be the duty of the State Engineer to reject such application."

This controversy, in the main, depends upon the interpretation and application of this provision of law.

The question is important because, on the one hand, the statute ought not to be a shield of protection to prior appropriators who divert water in excess of their reasonable necessities; and, on the other hand, the owners of genuine established rights should not be harassed and disturbed in the enjoyment of their rights by groundless claims of later applications. In the arid region water is precious, and it is the undoubted policy of the law to prevent its waste and promote its largest beneficial use. Water is a bounty of nature, and, while prior rights to its use are obtained by those who first apply it to a beneficial use, those rights are limited to the quantities reasonably necessary for the uses to which it is applied. This is a cardinal principle of law of prior appropriation. When a dispute arises between an applicant for a new appropriation and the prior appropriators as to whether there is unappropriated water in the source of supply, two questions naturally arise, viz.: (1) What is the total supply? and (2) What is the extent of existing rights? In the case of many of the canyon streams in this state, where the volume of stream flow varies and fluctuates not only from year to year but during each year, it is a most difficult matter to determine with any degree of certainty what the future supply will be. And the determination of existing rights, in many cases, involves intricate and difficult questions of both law and fact, and is peculiarly a judicial function.

Can it be said that the Legislature intended, by the statute quoted, to vest the power to make such adjudications in the state engineer? Of course the extent of prior rights must be determined before there can be any exercise of secondary rights, but it is premature and impracticable to make such determination before any secondary claim is initiated. It is the initiation of his claim which qualifies the prospective appropriator to challenge existing claims.

The approval of an application to appropriate is only a preliminary step. It confers upon the applicant no perfected right to the use of water. It does not in any degree impair or diminish the existing rights of others. It merely clothes the applicant with authority to proceed and perfect, if he can, his proposed appropriation by the actual diversion and application of the water claimed to a beneficial use. If in so doing he collides with conflicting claims, his standing as a prospective appropriator makes him a party in interest and qualifies him to assert his prospective right and to question conflicting claims. Unless his application has been approved, he is without interest in the subject-matter, unable to prosecute his claim or to question prior claims.

The state engineer has not the facilities to inquire into and determine the extent of existing rights, except in a very general way. Under the language of the statute it is not a prerequisite to the approval of an application that the state engineer find affirmatively that there is unappropriated water in the proposed source. The proposition is stated in the negative, and it is only when there is no unappropriated water in the source that the application is to be rejected. Since the policy of the law is to prevent waste and promote the largest beneficial use of water, new appropriations should be favored and not hindered. In a doubtful case, when the conclusion is not clear, it is more consistent with sound policy and with the general scheme of the law, to approve the application to appropriate and afford the new claimant the legal status and the opportunity to proceed in due order of law and have the disputed questions definitely and authoritatively determined, rather than to shut off such determination by the denial of his application.

These considerations support the conclusion that the only practical application of the statute quoted is to a case where it clearly appears that there is no unappropriated water in the proposed source. This would occur for example, where a general adjudication, of which notice to all persons had been given, or where perfected appropriations and prior pending applications of record in the engineer's office, established the appropriation of all available water of the source. But if the question is fairly doubtful and there is reasonable probability that a portion of the waters are not necessary to supply existing rights the engineer should have the power to approve the application and afford the applicant the opportunity for an orderly recourse to the courts, who have the facilities and powers to dispose of the matter definitely and satisfactorily.

The decisive question on this branch of the case is whether, under the facts as found by the court, the application must necessarily be rejected.

In the application in question it was stated that the water applied for was to be stored in a reservoir each year from January 1st to December 31st and used for irrigation each year from April 1st to October 31st upon designated lands. In an explanatory note it was stated:

"The following additional facts are set forth in order to define more clearly the full purpose of the proposed appropriation:

"The water applied for under this application is to be acquired through the construction of a pipe line to supply culinary water to those dependent upon the flow of Little Cottonwood through open channels for domestic purposes. The water so saved will be stored in what is known as the Beaver Pond Reservoir during the non-irrigation season and released for use upon the land described during the irrigation season. * * *"

The findings of fact made by the district court necessary to be noticed are, in substance, as follows: That Little Cottonwood creek is a mountain stream with a volume of flow varying during each year from a monthly average of 14 1/2 cubic feet per second during the lowest period in January to over 250 cubic feet per second during the highest period in the month of June; that on June 16, 1910, in an action pending between Union & East Jordan Irrigation Company, plaintiff, and Richards Irrigation Company, et al., defendants, the district court of Salt Lake county made and entered a decree that certain of the defendants were the prior appropriators of and entitled to use for irrigation and domestic purposes all of the "primary water" or "normal flow" of the stream; that neither the applicant, Kimball, or the state engineer, were...