Provo River Water Users' Ass'n v. Morgan

• Decision Date: 27 July 1993
• Docket Number: No. 920069,920069
• Citation: 857 P.2d 927
• Parties: PROVO RIVER WATER USERS' ASSOCIATION, a Utah corporation, and the United States of America, Plaintiffs and Appellants, v. Robert L. MORGAN, State Engineer of the State of Utah, and Kamas Hills Ltd., a Utah limited partnership, Defendants and Appellees.
• Court: Utah Supreme Court

Page 927

857 P.2d 927

PROVO RIVER WATER USERS' ASSOCIATION, a Utah corporation and the United States of America, Plaintiffs and Appellants, v. Robert L. MORGAN, State Engineer of the State of Utah, and Kamas Hills Ltd., a Utah limited partnership Defendants and Appellees.

No. 920069.

Supreme Court of Utah.

July 27, 1993.

Joseph Novak, Rodney R. Parker, Marc T. Wangsgard, Salt Lake City, for Provo River Water Users.

David Jordan, U.S. Atty., Stephen L. Roth, Asst. U.S. Atty., Salt Lake City, for U.S.

R. Paul Van Dam, Atty. Gen., Michael M. Quealy, John H. Mabey, Jr., Asst. Attys. Gen., Salt Lake City, for State Engineer.

Arthur H. Nielsen, Clark R. Nielsen, Salt Lake City, for Kamas Hills.

ZIMMERMAN, Justice:

This is an appeal from a district court order ruling that the 1937 Weber River Decree (the "decree") does not bar Kamas Hills Ltd. ("Kamas Hills") from asserting diligence claims to certain artesian springs. The springs are located in the Weber River drainage but have no surface connection with the Weber River or its surface tributaries. We affirm the trial court's order and hold that the decree did not adjudicate Kamas Hills' diligence claims and therefore poses no obstacle to their assertion now.

Because our decision turns on the scope of the decree, we begin our discussion of the facts by providing some background. The adjudication that led to the decree had its genesis in a 1921 lawsuit between Hooper Irrigation Company and North Ogden Irrigation Company. In February of 1921 the companies jointly petitioned the District Court of the Second Judicial District to convert their case into a general adjudication of the Weber River system pursuant to the general adjudication statutes then in effect. 1919 Utah Laws ch. 67, §§ 20-40. ¹ The court did so, and sixteen years later, it entered the decree. Plain City Irr. Co. v. Hooper Irr. Co., Civil No. 7487 (June 2, 1937). ²

The decree does not purport to adjudicate rights in all of the tributaries of the Weber River. According to the decree's terms, water rights on the Ogden River above its confluence with the Weber River and "rights upon tributaries or streams which flow into the Weber River System from the north side below said junction" are excluded from its scope. In addition to the water rights on the portion of the river and surface tributaries specified in the decree, the decree awards water rights in a number of "isolated springs," or springs that have no surface connection to the Weber River. The decree, tracking statutory language, declares that "all [subsequent] claims to the right to the use of water of [the Weber River] System are forever barred." ³ Central to our decision is the scope of the rights adjudicated by this decree. Did it include all water rights in the geographic area described? If not, what was covered?

We now turn to the facts of the instant case. In 1957, John I. Andrus, the predecessor in interest of Kamas Hills, filed two diligence claims ⁴ for water from certain isolated springs on his property in the Uintah Mountains, east of Marion and upslope of the Weber River. These springs, referred to here as the "Kamas Hills springs," are isolated artesian (or flowing) springs--they rise to the surface naturally, flow a short distance, and then percolate back into the ground. The entire flow of these springs takes place on Kamas Hills' property. At all pertinent times, the water has been used for irrigation and stock watering.

Sometime before 1988, Andrus conveyed his interest in the springs to City Creek Enterprises, the immediate predecessor in interest of Kamas Hills. In 1988, City Creek Enterprises filed a change application with the state engineer requesting a change in point of diversion and place and nature of use for the Kamas Hills springs. According to the change application, City Creek Enterprises proposed to use the water primarily to support 100 year-round residences and 176 occasional-use residences. The application also indicated that some water would be used for irrigation and stock watering.

The Provo River Water Users' Association ("PRWUA") and the Bureau of Reclamation

protested the change application. PRWUA is a nonprofit corporation formed to repay the construction costs of a federal reclamation project that includes the Deer Creek Dam and Reservoir near Heber City. Most of the water captured by the project is used for municipal purposes in Salt Lake and Utah Counties. The project water rights, standing in the name of the United States (through the Bureau of Reclamation), include rights to divert water from the Weber River and deliver it into the Provo River through the trans-watershed Weber-Provo Diversion Canal. Because the priority dates of these water rights are relatively late compared to other water rights on the Weber River, they are essentially rights to the Weber River's surplus flows.

PRWUA and the Bureau of Reclamation protested the change application because they believed that the Kamas Hills springs share the same hydrologic system as the Weber River. The protestants apparently contended that the elimination of some of the return flows from the current use of the springs would reduce the overall quantity of water in the Weber River system. Because less surplus flow would be available, they claimed that the change would impair their vested rights. PRWUA further argued, ostensibly in the alternative, that the decree barred City Creek Enterprises from asserting the diligence claims originally filed by Andrus.

The state engineer rejected the protests and approved the change application on September 8, 1989. However, he ordered that the proposed residential use be reduced to 90 year-round and 105 occasional-use units. Similar reductions were ordered for irrigation and stock watering.

PRWUA timely filed an action in the Third Judicial District Court for a de novo review of the state engineer's decision. The complaint named City Creek Enterprises and the state engineer as defendants. Before trial, City Creek Enterprises conveyed its interest in the Kamas Hills springs to Kamas Hills Ltd., which took its place as co-defendant. The United States subsequently intervened as a co-plaintiff.

At trial, the parties agreed that there was no surface connection between the Kamas Hills springs and the Weber River. The court was thus faced with deciding whether the decree adjudicated water sources with a subsurface connection to the Weber River and whether, in fact, the Kamas Hills springs fed the Weber River underground. Although the trial court ultimately affirmed the state engineer's decision, the basis for its decision is unclear. The court's order does not state explicitly whether it found that the decree was intended to adjudicate all water right claims in the Weber River drainage area specified in the decree or just those for water sources with surface connections to the Weber River. The court did find that "the evidence is insufficient to establish that the waters from the [Kamas Hills springs] definitely make their way into the Weber River," apparently in reference to the possibility of a subsurface connection. However, the court's order is ambiguous as to whether this finding was the sole or an alternative basis for decision. PRWUA and the United States now appeal.

Before this court, the parties characterize the trial court's order as interpreting the decree to adjudicate only claims for waters with a surface connection to the Weber River and its tributaries. We construe the order according to this view. It is ambiguous on this point, and construing it as they contend does not result in a patently irrational order and is as logical as any other construction.

We address two of plaintiffs' arguments. First, we consider their argument that the trial court erroneously admitted parol evidence to interpret the decree because it purportedly had found the decree unambiguous on its face. Second, we address plaintiffs' contention that the trial court erred in interpreting the decree as not barring Kamas Hills' diligence claims.

We first examine plaintiffs' challenge to the trial court's admission of parol evidence. Over plaintiffs' objection, the trial court admitted evidence of the state engineer's normal practices and policies during the Weber River adjudication process. The court also admitted evidence showing that hundreds of diligence claims had been filed for waters within the relevant portion of the Weber River drainage that were not recognized in the decree. Plaintiffs claim that this evidence should not have been admitted because the trial court expressly found that the language of the decree was unambiguous. They argue that admitting the evidence violated the rule that parol evidence is not admissible to interpret a water rights decree when that decree is unambiguous on its face. See Meridian Ditch Co. v. Koosharem Irr. Co., 660 P.2d 217, 221 (Utah 1983); cf. Logan, Hyde Park & Smithfield Canal Co. v. Logan City, 72 Utah 221, 227, 269 P. 776, 778 (1928).

As an initial matter, we do not read the trial court's order as finding that the decree was unambiguous, at least with respect to the issue of whether it precluded Kamas Hills' diligence claims. The order states only that "the Weber River Decree is not ambiguous as far as it goes, but ... the Decree does not extend as far as the Plaintiffs' claims in this matter." We think this statement means simply that the decree is unambiguous as to the rights it explicitly adjudicates, viz., those tabulated in the decree.

Having reviewed the decree, we agree with the trial court's implicit conclusion that the decree is ambiguous as to whether it was intended to adjudicate the rights to all waters in that geographic portion of the Weber River drainage described in the decree, without regard to whether those waters are hydrologically connected to the Weber River underground or only by surface tributaries. For example, the decree states that it is...