Piute Reservoir & Irr. Co. v. West Panguitch Irr. & Reservoir Co.

• Decision Date: 09 January 1962
• Docket Number: No. 9411,9411
• Citation: 13 Utah 2d 6,367 P.2d 855
• Court: Utah Supreme Court
• Parties: d 6 PIUTE RESERVOIR & IRRIGATION COMPANY, Deseret Irrigation Company, et al., Plaintiffs and Appellants, v. WEST PANGUITCH IRRIGATION & RESERVOIR COMPANY, State of Utah and Wayne D. Criddle, State Engineer of the State of Utah, Defendants and Respondents.

Page 855

367 P.2d 855

13 Utah 2d 6

PIUTE RESERVOIR & IRRIGATION COMPANY, Deseret Irrigation

Company, et al., Plaintiffs and Appellants, v. WEST PANGUITCH IRRIGATION & RESERVOIR COMPANY, State of Utah and Wayne D. Criddle, State Engineer of the State

of Utah, Defendants and Respondents.

No. 9411.

Supreme Court of Utah.

Jan. 9, 1962.

Marr, Wilkins & Cannon, Richard H. Nebeker, Salt Lake City, Sam Cline, Milford, Thorpe Waddingham, Delta, Olsen & Chamberlain, Richfield, for appellants.

McKay & Burton, Henry D. Moyle, Salt Lake City, Walter L. Budge, Atty. Gen., Richard R. Boyle, Dallin W. Jensen, Asst. Attys. Gen., for respondents.

WADE, Chief Justice.

We granted a rehearing on this appeal by plaintiffs, Piute Reservoir & Irrigation Company and the other lower water users of the Sevier River, from the conditional allowance of defendant, West Panguitch Irrigation & Reservoir Company's application to change the use of 700 acre feet of winter water of Panguitch Creek to reservoir storage until the dry summer season, then to be used to supplement the watering of land already under irrigation from that creek. The Cox Decree awarded appellant, West Panguitch, the entire above-ground flow of Panguitch Creek, a tributary of the Sevier River. However, only occasionally during unusual floods or high water is there any above-ground flow of water from this creek which reaches the Sevier River. The waters sought to be stored are presently diverted during the winter into the West Panguitch Canals for culinary, stock watering and ground-flooding purposes.

In our former opinion ¹ we approved the application concluding that the evidence would reasonably justify a finding of reason to believe that the winter water could be stored until the dry summer season and then used to supplement the watering of applicant's presently irrigated lands without depriving the lower water users of any waters of the Sevier River which would have reached the Piute Reservoir without the change. We emphasized this as the condition on which the approval was based and we did not approve the statement in the Engineer's decision that there could be a 'de minimus' decrease of the water reaching the lower users 'with which the courts will not be concerned.' In other words, while we approved the application, we definitely held that the change should not be allowed to operate without affirmative proof that the rights of the lower water users of the Sevier River were not thereby impaired.

Does the evidence show reason to believe that the winter waters now used for culinary, stock watering and land flooding can be stored in a reservoir to be built until the dry summer season, then used to supplement watering of the presently irrigated land without depriving lower water users of the Sevier River of the use of some quantity of water during the same period of time as would have been available to them without the change? Without such a showing this application should be denied. For if the operation of such a change will deprive the lower users of the same quantity of water during the same period of time as they would have had without this change, their vested rights will thereby be impaired. ² So this is the determinative question to be considered on this appeal.

The lands irrigated in the summer and fooded in the winter by water from Panguitch Creek consist of a strip bordering the west side of the Sevier River for about eight miles. The south end of this strip, where the city of Panguitch is located, is about five miles wide, but down stream to the north it is only three to two miles wide. All of this strip definitely slopes toward the river. There were practically no measurements of the amount of water passing through this area either in the Sevier River or Panguitch Creek introduced in evidence. However, there was some evidence of the amount of the flow of the winter waters of Panguitch Creek, and during the trial appellants made measurements of the flow of water in the Sevier River at the upper and lower ends of this area. These measurements show that on June 21, 1960, there was a flow of one cubic foot per second at the upper end of this strip and an increase to 17 cubic feet per second near the lower end of this area. This shows an increase by underground flow of 16 cubic feet per second within less than eight miles. The lands on the east side of the Sevier River are also irrigated so part of this increased flow would probably come from that side. This increase definitely indicates that the waters from Panguitch Creek, which is used for winter flooding, would produce a substantial underground flow into the Sevier River. That is especially true of winter flooding when on account of cold weather and lack of plant growth there would be little water consumption from evaportation or plant transpiration. It is also evidence that most of this underground flow into the Sevier River during the winter would reach the Piute Reservoir where it would be available for the protesting lower water users below, since, during that time the nearly tight diverting dams between Panguitch and Piute Reservoir would not be diverting all of the winter flow of water in that river.

After a careful restudy of the record we find definite evidence that the proposed change would decrease the amount of winter water available for storage and use in and below the Piute Reservoir by the protesting plaintiffs. Further, we have been unable to find any evidence in the record to the contrary. Most of the evidence on this question was by Deputy State Engineer Lambert, who testified that he participated with the State Engineer and the Attorney General's Office in approving the application.

Much of Lambert's testimony dealt with clarifying a statement in the Engineer's decision, 'that the effect on lower direct flow users of the changes here proposed reaches the 'de minimus' with which the courts will not be concerned.' After apparently suggesting a number of much greater amounts he seems to conclude that a loss of 10 acre feet to the lower water users would be more than the so-called de minimus amount with which the courts will not be concerned and should require that this application be not allowed.

Lambert discussed a number of items which would affect the amount of the probable loss to the lower users. Under one such item he arrived at a loss of as little as 55 acre feet plus, which amount, he stated, was a comparatively small amount. Later he expressed the opinion that the return flow in any area is considerable, especially where the land is close to the river. He seems to conclude at this point that a very intelligent guess would place the return flow of this winter flooding water at 400 acre feet out of the 700 acre feet which would be stored under this change.

He emphasized that in the winter months there would be practically no consumption, even though the water was spread out on the land; but if the water was released in January, or...