McGarry v. Thompson

• Decision Date: 30 December 1948
• Docket Number: 7165
• Citation: 201 P.2d 288,114 Utah 442
• Court: Utah Supreme Court
• Parties: McGARRY v. THOMPSON, et al

201 P.2d 288

114 Utah 442

McGARRY v. THOMPSON, et al

No. 7165

Supreme Court of Utah

December 30, 1948

Appeal from District Court, Fifth District, Iron County; Will L Hoyt, Judge.

Application by M. C. Hintzen to appropriate waters. Subsequently Jerold E. Thompson filed in the State Engineer's Office an application for a change in diversion point of the waters under the Hintzen application, protested by John C. McGarry. From a ruling of the State Engineer's Office, McGarry appealed to the district court, who ruled in favor of McGarry, and Jerold E. Thompson and Ed H. Watson, State Engineer, appeal.

Affirmed.

Elias Hansen, of Salt Lake City, Grover A. Giles Atty. Gen., and Edward W. Clyde, Special Asst. Atty Gen., for appellants.

Cline, Wilson & Cline, of Milford, for respondent.

Wade, Justice. Pratt and Latimer, JJ., concur. Wolfe, Justice (dissenting). McDonough C. J., concurs in the views expressed by Wolfe, J.

OPINION

Wade, Justice.

The defendants, the State Engineer and Jerold P. Thompson, appeal from a judgment of the District Court of Iron County which reversed a ruling of the State Engineer's Office approving an application for a change of diversion point and place of use of underground waters pursuant to an application to appropriate such waters. The application to appropriate was filed by M. C. Hintzen in the State Engineer's Office on August 17, 1945. It proposed to appropriate 4 cubic feet per second of underground waters in the Beryl District in Iron County, Utah to irrigate 160 acres of land during the irrigation season and water for domestic and stockraising purposes the year round, it stated that one second foot for 40 acres of land is substantially the correct duty of water in that district and that no more water would be used than was necessary to satisfy the proposed purposes.

At the time of filing this application to appropriate, Hintzen was purchasing 100 acres of land under a contract from plaintiff McGarry. The application to appropriate stated therein that the purpose was to irrigate the 160 acre quarter section of which the 100 acres being purchased was a part and the proposed diversion point was on this 100 acres. The contract expressly stated that in case Hintzen should make application in the State Engineer's Office to appropriate water from wells located on these premises and should thereafter default in his contract with McGarry, that McGarry thereupon would immediately become the assignee and owner of such application to appropriate.

On February 26, 1946, Hintzen had paid in full the purchase price for the 100 acres of land but the title thereto was still in McGarry. By mutual consent the contract to purchase this 100 acres was surrendered and cancelled and McGarry deeded to Hintzen in lieu thereof another 80 acres of land not covered by the contract of purchase. The 80 acres deeded to Hintzen included an application to appropriate waters to irrigate the same. Hintzen, having no use for the application to appropriate which he had filed with the State Engineer's Office covering the 100 acres of land which he had contracted to purchase, executed and delivered a written assignment of such application to McGarry on the above mentioned day. Such assignment was not filed with the State Engineer's Office until December 20, 1946, after it had been recorded on November 23, 1946, in the County Recorder's Office. Hintzen occupied the premises which he contracted to purchase from the time of entering into that contract to the time he surrendered it back to McGarry, but shortly thereafter and prior to April 1, 1946, he moved from those premises to the 80 acres which was conveyed to him in lieu thereof. Prior to making the assignment of the application to appropriate to McGarry, Hintzen had received a copper identification tag which he was instructed by the State Engineer's Office to place on the well when it was drilled under that application and after he made that assignment he returned this copper tag to the State Engineer's Office and informed it of his changed conditions and that he did not intend to complete that appropriation.

In October, 1945, Thompson became interested in lands and water rights in the Beryl District and he became acquainted with and had considerable dealings with McGarry. He admitted that he had filed four applications to appropriate underground waters in that district for a total quantity of 21.5 cubic feet per second to irrigate 960 acres of land. Thereafter he became interested in acquiring the right to use water to irrigate 160 acres more land and on March 19, 1946 he called on the State Engineer's Office to obtain information on how to acquire such a right. There he examined the records for applications to appropriate underground water in that district under which no well had been drilled and among others he was referred to and examined this Hintzen application. He there learned that Hintzen did not intend to complete this appropriation and took his name hoping to acquire his interest therein. The next day Thompson had a conversation with McGarry and inspected some property with him, and although he knew that McGarry was the owner of the land which the Hintzen application to appropriate was to irrigate, and that Hintzen had surrendered his right to purchase that land and did not intend to make the appropriation, he said nothing to McGarry about his intention to acquire Hintzen's interest in that application to appropriate.

Later Thompson contacted Hintzen. According to Thompson's testimony, Hintzen told him that he still owned the application to appropriate this water, but that he had returned the copper identification tag to the State Engineer's Office and notified that office that he did not intend to complete his appropriation and expressed doubt that his application was still valid. Thompson by his own testimony was very anxious to obtain the right to develop underground waters to irrigate 160 acres of land in that district and apparently after consulting with the State Engineer's Office he felt that this was about his only chance to obtain such a right, because he testified that he was willing to take a chance and pay Hintzen for this application to appropriate even though he knew that it was of doubtful validity. These circumstances indicate that although the underground waters of this district were not withdrawn from appropriation by the governor's proclamation until April 10, 1946, which was after these negotiations, still the State Engineer's Office was not accepting any new applications to appropriate such waters. Otherwise, Thompson could have filed a new application to appropriate such waters and would not have had to purchase one from someone else. Thompson further testified that Hintzen told him that he still owned 20 acres of the 100 acres which he contracted to purchase from McGarry. However the record shows that Hintzen did not own any interest in that land at that time, and there is nothing to indicate that an examination of the records of the County Recorder's Office would not have revealed the truth on this question.

Prior to April 1, 1946, Thompson agreed with Hintzen to clear the brush from the 80 acres which Hintzen had received from McGarry in exchange for Hintzen's assignment to him of this application to appropriate. There is evidence that such work was worth $ 10 per acre, and that a part of the work was done by Hintzen himself. There is no doubt that the work done by Thompson for Hintzen was of substantial value. On April 6, 1946, Hintzen executed and delivered to Thompson a written assignment of his application to appropriate this water, on a form furnished by the State Engineer's Office and this assignment was filed in that office for recording on April 16, 1946.

On August 9, 1946, Thompson filed in the State Engineer's Office, an application for a change in the diversion point and the place of use of the waters to be appropriated under the Hintzen application to appropriate. Thereafter and in due time McGarry protested this application to change, claiming to be the owner of the Hintzen application to appropriate. On March 3, 1947, without any formal hearing thereon, the State Engineer approved Thompson's change application. Why no hearing was had does not appear but such method of procedure seems to be out of harmony with proper procedure in deciding such issues. McGarry appealed from that ruling on March 31, 1947 to the District Court and that court, upon the hearing, held that McGarry and not Thompson was the owner of this application.

The record on appeal fails to show that Hintzen's application to appropriate was ever approved. However, the records of the State Engineer's Office shows that it was approved on March 19, 1947, long after both of these assignments had been made and after the State Engineer had approved Thompson's change application. Since the records of the State Engineer's Office are public records, we take judicial notice thereof. Thereafter and after McGarry had taken his appeal to the District Court on May 7, 1947, Thompson commenced and completed drilling his well at a cost of $ 1975.

Appellants argue at some length that an unapproved application to appropriate water is not assignable and therefore the assignment to McGarry is void. In this argument they seem to assume that this application was approved by the State Engineer after the McGarry assignment and before the Thompson assignment, but they advance no theory which would justify us in reaching such a result. Such being the case, if they are correct in this argument, then Thompson's assignment as well as that to McGarry, is void and Thompson cannot possibly succeed on this appeal. Therefore a decision of this question is necessary for...