Piute Reservoir & Irr. Co. v. West Panguitch Irr. & Reservoir Co., 9411

• Decision Date: 28 August 1961
• Docket Number: No. 9411,9411
• Citation: 12 Utah 2d 168,364 P.2d 113
• Court: Utah Supreme Court
• Parties: d 168 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 113

364 P.2d 113

12 Utah 2d 168

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.

Aug. 28, 1961.

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 and Dallin W. Jensen, Asst. Attys. Gen., for respondents.

WADE, Chief Justice.

On March 17, 1957, West Panguitch Irrigation & Reservoir Company filed an application with the State Engineer for a permit to change a part of their established winter direct flow water rights to a right to store this winter water in a reservoir not yet constructed. Hereinafter we will sometimes refer to the West Panguitch Irrigation & Reservoir Company as applicant, or West Panguitch Company, it being one of the respondents and a defendant in this action. The applicant proposes to construct a dam near the mouth of Panguitch Canyon above the city of Panguitch and about 16 miles below Panguitch Lake. Panguitch Lake is also used by applicant West Panguitch Company as a water storage facility. The proposed dam and reservoir-site is above the place where applicant diverts the water of Panguitch Creek into two irrigation canals for use for irrigation and culinary purposes in the surrounding territory.

Applicant proposes to store 700 acre-feet of winter waters of Panguitch Creek and use it in the dry summer months to supplement their irrigation streams. It also contends that such a storage reservoir would be of great benefit in preventing floods and disposing of silt and in other ways. Most of the water in question has for years been diverted into applicant's canals and used for winter flooding, stock watering and domestic purposes. The diversion into applicant's canals is by tight dam. Panguitch Canyon Creek is a tributary of, and when the water is not diverted, merges with the Sevier River. There is no direct aboveground return flow of the waters diverted from the creek either into the creek or the Sevier River, and only occasionally when there is unusual precipitation does the water from the creek, since the tight diverting dam was constructed, flow directly into that river.

By the Cox Decree applicant was awarded all of the flow of the Panguitch Creek for the entire year with a storage right in the Panguitch Lake. Applicant does not propose to irrigate any new land by reason of this application, but seeks only to supplement during the dry season the irrigation of land already under cultivation and now irrigated from this stream. The State Engineer approved this application with several limitations thereon. Among such limitations were that the change could be made and placed in operation if this could be effected without impairing existing rights to the use of the waters in question by lower users, that no new lands be brought under cultivation by reason of this storage reservoir, that plans and specifications be submitted to and approved by the State Engineer before construction is commenced, and that measuring devices be installed by applicant as required by the State Engineer. The District Court expressly included the same limitations in its judgment approving the application as was contained in the approval by the State Engineer.

In some respects this case is similar to East Bench Irrigation Co. v. Deseret Irrigation Co., ¹ which deals with an application to construct for storage of about 13,650 acre feet of the waters of the South Fork of the Sevier River. Here the applicant West Panguitch Irrigation Company seeks to store the winter waters from Panguitch Creek, a tributary of the Sevier River, in a reservoir to be built near the mouth of Panguitch Canyon for use to supplement its irrigation water during dry summer seasons. This same problem was presented in the East Bench case. Both cases involve the head waters of the Sevier River above Piute Reservoir, and in both cases the lower water users objected, claiming that such change will deprive them of their established rights to use the water which will be stored for use in the lower irrigation system from that river. The cases are different in that in the East Bench case the appellants proposed not only to supplement the irrigation waters during the dry summer season, but proposed to bring under cultivation and irrigation new lands, and to save water by draining swampy areas and lowering the water table under the ground already under irrigation.

It is not of controlling importance that applicant West Panguitch Irrigation Company intends to irrigate only lands which have long been under irrigation from the water of the Panguitch Canyon Creek. The determining question is whether the storage of this winter water in the proposed reservoir will interfere with the established or vested rights of the protesting lower water users of the Sevier River System. ...