Pool v. Utah County Light & Power Co.

• Citation: 105 P. 289,36 Utah 508
• Decision Date: 13 November 1909
• Docket Number: 2027
• Court: Supreme Court of Utah
• Parties: POOL v. UTAH COUNTY LIGHT AND POWER COMPANY et al

105 P. 289

36 Utah 508

POOL v. UTAH COUNTY LIGHT AND POWER COMPANY et al

No. 2027

Supreme Court of Utah

November 13, 1909

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by William H. Pool against the Utah county Light & Power Company, and another.

Judgment for defendants. Plaintiff appealed.

AFFIRMED.

C. S Varian for appellant.

APPELLANT'S POINTS.

Where a statutory power or jurisdiction is granted, which otherwise does not exist, whether to a court or an officer, the grant is strictly construed, and the mode of procedure prescribed must be strictly pursued. (Burrows v. Kimball, 11 Utah 150; Sutherland Statutory Construction, secs. 454-458.) When a statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it the mode of procedure provided by the statute is conclusive, and must be pursued strictly. (26 Am. and Eng. Ency. [2d Ed.], p. 671; Campbellsville Lumber Co. v. Hubbart, C.C.A. 112, Feb. 724.) Suppose that no application or order for extension was made at any time, but that by the law there was jurisdiction to grant an extension after the expiration of time first granted. In such event, no one could safely make application to appropriate any of the water included in the defendant's attempted appropriation, nor make preparations for the construction of works, or the diversion of the water for any purpose, since it could not be known definitely and finally before the expiration of the statutory period that the defendant would not ask for, and procure an extension. This is an apt case for the illustration, since it is alleged in the complaint, and admitted in the answer, that the quantity of water, to-wit: 100 second feet, sought to be appropriated by each party is all of the unappropriated water in the stream. Under settled rules of construction, and with the support of authorities upon other statutes conferring powers in relation to the time of doing acts, employing like language with the one under consideration, we submit that the construction given the statute by the court below is erroneous, and that the state engineer had not the power to extend the time, after the original time granted had expired. It may be noted that the practice in this respect has been changed in the office of the engineer, and extensions are not now granted, after the expiration of the original time prescribed. (Butler v. Lawson, 29 Utah 439; Smith v. Fisher, 3 Utah 24; Elliott v. Whitmore, 10 Utah 253; Rogers v. Traders' Bank, 60 Kan. 855, 55 P. 463; Schwartz v. Davis, 74 P. 800, 9 Idaho 238; Ferree v. Walker, 54 Kan. 49, 36 P. 738; Brown v. Crabtree, 47 P. 525; Abel v. Blair, 3 Okla. 399, 41 P. 342; Polson v. Pursell, 4 Okla. 93, 46 P. 578; Sigmon v. Pool, 49 P. 944; In re Clary's Estate, 112 Cal. 292, 44 P. 569.)

J. W. N. Whitecotton and A. J. Evans for respondents.

RESPONDENT'S POINTS.

A diligent search for authorities has failed to disclose any case just like the present, and we are, therefore, left, as it seems, to the analogy of similar cases, and the nearest we have been able to find is the law relating to mining locations. The law is well settled that the facts existing in this case would not work a forfeiture of rights to a mining location. (Rose v. Richmond Mining Co., 17 Nev. 25; Belk v. Meagher, 104 U.S. 279; Snyder on Mines, sec. 572.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This action originated in the District Court of Utah County, and involves the question as to whether the appellant or respondent has the prior right to the use of the waters of American Fork Creek, a stream flowing through Utah County. The district court found the issues in favor of respondent, and entered judgment dismissing the action; hence this appeal.

Respondent's claim to the water arises by virtue of an application made by it under chapter 100, page 88, Laws Utah 1903, entitled "Water Rights and Irrigation," and appellant's claim is based upon his application made under the same act as amended by chapter 108, page 145, Laws Utah 1905. Since the provisions of the two chapters are the same in so far as the rights of the parties to this action are concerned, we shall refer to the act of 1903 only. By this act very important changes for the appropriation and perfecting of rights to the use of public waters of this state were effected. In view that the questions presented for decision involve the construction of certain provisions contained in said act, we shall, in substance at least, set forth such parts as we deem material to a full understanding of the questions decided. Section 1 of the act creates the office of state engineer. The governor, with the approval of the senate, is required to fill the office by appointment. In defining a part of the powers and duties of the state engineer, said section provides as follows:

"He shall have general supervision of the waters of the state and of their measurement, apportionment and appropriation. . . . He shall have power to make and publish such rules and regulations as he may deem necessary from time to time, to fully carry out the provisions of this act and secure the equitable and fair apportionment of the water according to the respective rights of appropriators."

In referring to the right to acquire the use of unappropriated water, section 34 of said act provides:

"Rights to the use of any of the unappropriated water in the state may be acquired by appropriation, in the manner hereinafter provided, and not otherwise. The appropriation must be for some useful or beneficial purpose, and, as between appropriators, the one first in time shall be first in right."

Section 35 provides that the application for an appropriation of water must be made to the state engineer. This section specifically prescribes how the application must be made, and what it must contain. Since there is no claim that this section was not complied with, and as it is quite long, we shall not state its contents further. Section 36 provides the duties of the state engineer with respect to the application. No contention arises under this section, nor under section 37, which provides that a notice of the application shall be published by the state engineer. Section 38 provides that any interested person may "within thirty days after the completion of the publication of said notice, file with the state engineer a written protest against the granting of said application, stating the reasons therefor, which shall be duly considered by said engineer. He may, in his discretion, hear evidence in support of or against such application, and shall take such action thereon as he may deem proper and just." Section 42 is as follows:

"In his indorsement of approval of any application, the state engineer shall require that actual construction work must begin within ninety days from the date of such approval, and that the construction of the proposed irrigation works shall be completed within a period of five years from the date of such approval. He may limit the applicant to a less period for the completion of the work and the perfection of the right. The state engineer shall have authority, for good cause shown, to extend the time within which any irrigation or other works shall be completed, and the appropriation perfected."

It is also provided in the act that in some instances the party feeling himself aggrieved may review the action of the state engineer by a direct appeal to the district court of the county wherein the water is diverted for use, and in other instances may bring an action in such court by which the actions taken by the state engineer may be indirectly reviewed. The state engineer is invested with a large discretion in discharging his duties with respect to effectuating at least some of the important provisions of the act. The act is quite comprehensive, and, in general, it may be said that its provisions may be readily understood and complied with. Yet, as we shall see, there are some provisions which require careful consideration in order to determine their true meaning and intent. The act, to a large extent, seems to be modeled after the irrigation law of Wyoming. (See chapters 10-14, inclusive, title 9, Revised Statutes Wyoming 1899.)

The questions involved in this appeal all arise under the provisions of section 42, which we have set forth in full. This section is a copy of section 922 of chapter 14 of title 9 of the Revised Statutes of Wyoming, aforesaid, and was originally adopted in that state in 1895. (See section 1, chapter 45, page 89, Session Laws Wyoming 1895.) North Dakota has a similar section. (See section 30, chapter 34, page 53, Laws North Dakota 1905.)

The facts that are deemed essential to this appeal are substantially as follows: That on July 7, 1904, the respondent made application to the state engineer, under the act of 1903 above referred to, "to appropriate one hundred cubic feet per second of time of the waters of American Fork Creek, in Utah County, State of Utah to be diverted from said creek in Utah County, and conveyed through a pipe line to a point of use and distribution for the purpose of developing power to generate electricity for lighting and propelling machinery and other purposes;" that the application was approved by the state engineer on the 16th day of March, 1905, and the respondent was, by order of the state engineer, required to begin the construction of its plant and pipe line to be used in generating the power aforesaid within three months from said 16th day of March, 1905, and to complete said plant within eighteen months from the date aforesaid; that respondent commenced work within three months from March 16, 1905; that it did not...