Provo Bench Canal & Irrigation Co. v. Linke, s. 8390
| Citation | 296 P.2d 723,5 Utah 2d 53 |
| Decision Date | 01 May 1956 |
| Docket Number | 8391,Nos. 8390,s. 8390 |
| Parties | d 53 PROVO BENCH CANAL AND IRRIGATION COMPANY, a corporation, et al., Plaintiffs and Respondents, v. Harold A. LINKE, as State Engineer of the State of Utah (Successor in office of Ed. H. Watson, former State Engineer of the State of Utah) and United States of America, through its Bureau of Reclamation, Department of the Interior, Defendants and Appellants. |
| Court | Supreme Court of Utah |
E. R. Callister, Jr., Atty. Gen., Robert B. Porter, Asst. Atty. Gen., A. Pratt Kesler, U. S. Dist. Atty., Salt Lake City, for appellants.
Dallas H. Young, Christenson & Christenson, Provo, for respondents.
W. J. Lee Rankin, Sol. Gen., and William H. Veeder, Atty. Dept. of Justice, Washington, D. C., for the United States.
Fisher Harris, Salt Lake City, amicus curiae.
This appeal involves two applications by the United States of America to the State Engineer to change the place of diversion and use of many water rights acquired by it in the construction of the Deer Creek Reservoir in Provo Canyon. Over the protest of the lower water users the State Engineer approved these applications from which the protestants appealed by commencing this action in the District Court. The District Court rejected the applications and the State Engineer and the U.S.A. appeal from that decision. We must determine whether there was a showing of reason to believe that such changes can be made without impairing vested rights of others. 1 We have twice previously determined questions growing out of this litigation. 2
In the construction of the Deer Creek Reservoir the U. S. A. acquired certain lands most of which are at times covered by the water stored in such reservoir. It also acquired a maximum total water right of 52.492 second feet which prior thereto had been used to irrigate such lands. In June of 1945, the U. S. A. filed with the State Engineer two applications to change the place of diverson and use of such waters to a place below the mouth of Prove Canyon. During the hearing of the protests of the lower water users before the State Engineer and in the District Court, the applications were reduced from 52.492 second feet to 9.33 second feet which amount the District Court found that under the pre-reservoir conditions was consumed by evaporation and transpiration of plant life without increasing or enhancing the amount of water available to the lower users. We are required to determine only whether the evidence requires the approval of these applications for the change of the place of diversion and use of these 9.33 second feet of water.
The District Court held that these applications must be rejected because more water is lost to plaintiffs since the construction of the reservoir, than the amount of water involved in these applications, by evaporation, plant transpiration and seepage through a fault line under the reservoir. This holding is obviously incorrect.
Since the construction of the reservoir all the water flowing down Provo River above the dam is impounded in the reservoir so that the water which formerly flowed naturally down the river course to plaintiffs' respective diversion places without regulation or artificial controls is now subject to the control of the operators of the reservoir. Under the present system the amount of water which reaches the respective diversion places of plaintiffs and becomes available for their use is largely regulated by the operators of the reservoir and is based on calculation and to some extent on speculations and uncertainties, for there is no way under the new system to demonstrate the exact amount of water which would have been available to the plaintiffs under the old system. However, the reservoir has made much more water available for use below the mouth of Provo Canyon than would have been without it. Out of such water the plaintiffs have the first and prior rights to the use of the amount of water which they would have been entitled to and which would have been available to satisfy their rights under the old system had the reservoir not been constructed, and in determining that amount they are entitled to the benefit of all doubts and uncertainties thereon because such doubts and uncertainties are the result of such changes which were made for the benefit of the inferior right-holders. 3 The amount of water which plaintiffs are entitled to is in no way dependent on nor should it be determined by the amount of water which is lost in the reservoir through evaporation, transpiration, or seepage but is based on the amount of water which they would have been entitled to and would have been available for their use under the old system. Such being the case plaintiffs' vested rights cannot be impaired by the approval of these applications nor does such approval increase the doubts and uncertainties as to the amount of water plaintiffs are entitled to use, for such doubts and uncertainties were created by the construction and operation of the reservoir, not by the change of place of diversion and use of the water.
As an additional reason for denying these applications the District Court held that such change in place of diversion and use is forbidden by the decree in a previous water rights determination suit between the plaintiffs, the predecessors of the U. S. A., and other water users of the Provo River water system. That decree provided that 'none of the parties (to such suit) shall change the place of use of said waters so as to cause the seepage or drainage therefrom to be diverted away from the channel of said river or channels, or from the lands heretofore irrigated thereby.' The plaintiffs' water rights as lower users were acquired prior in time to the rights of the U. S. A.'s predecessors but in that suit plaintiffs stipulated that the U. S. A.'s predecessors should be decreed the right to the use of sufficient of such waters to satisfy their needs regardless of that fact. The plaintiffs now contend, in accordance with the theory adopted by the trial court, that by such stipulation and decree, against a change in place of use of such waters, if such change was made the plaintiffs would thereupon become entitled not only to the use of the return flow and seepage which would have occurred under the former use but also to the use of the waters which would have been completely consumed under such former use. This conclusion seems to be based on the idea that plaintiffs surrendered a valuable right by such stipulation and that in consideration therefor the parties had agreed and the court awarded to them, in case of change in place of use of any of such waters the right to the use of all of such changed water right, including the part thereof which would have been consumed had such use not been changed, in addition to the rights awarded to plaintiffs by such decree. Such construction of that stipulation and decree is untenable.
The water rights determination decree does not forbid a change in the place of use of such waters. It only forbids such change as will divert the seepage and drainage from such use from the channel of the river or from the lands previously irrigated by such seepage or drainage. It merely expressly limits the right to change the place of use to the same extent as such right is limited by our statutes and by common law of western irrigation. In other words it simply prohibits such change as will impair the vested rights of others. It deals only with a change which will divert away from the river channel or the lands previously irrigated thereby the seepage and drainage from such use. It does not award to plaintiffs the right to the use of the waters which under the older use would have been completely consumed but...
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