Rocky ford Irr. Co. v. Kents Lake Reservoir Co.

• Decision Date: 24 March 1943
• Docket Number: 6473
• Citation: 104 Utah 202,135 P.2d 108
• Court: Utah Supreme Court
• Parties: ROCKY FORD IRR. CO. et al. v. KENTS LAKE RESERVOIR CO. et al

135 P.2d 108

104 Utah 202

ROCKY FORD IRR. CO. et al. v. KENTS LAKE RESERVOIR CO. et al

No. 6473

Supreme Court of Utah

March 24, 1943

Appeal from District Court, Fifth District, Beaver County; Will L Hoyt, Judge.

Action by Rocky Ford Irrigation Company and another against Kents Lake Reservoir Company and another, for a plenary review of the decision of defendant T. H. Humphreys, as State Engineer of the State of Utah, granting defendants' application to change the place of storage of 830 acre feet of water per annum out of a previously awarded storage right from the South Fork of Beaver River to a proposed reservoir site on the main channel of Beaver River and application to appropriate for annual storage from Beaver River 1,193 acre feet of allegedly unappropriated water. From a judgment affirming the engineer's decision, plaintiffs appeal.

Decree affirmed.

Cline Wilson & Cline, of Milford, and H. R. Waldo, of Salt Lake City, for appellants.

Elias Hansen, of Salt Lake City, LeRoy H. Cox, of St. George Grover A. Giles, Atty. Gen., and E. J. Skeen, of Salt Lake City, for respondents.

WOLFE Chief Justice. LARSON, McDONOUGH, and WADE, JJ., concurring. MOFFAT, Justice, concurring in part, dissenting in part.

OPINION

WOLFE, Chief Justice.

In April, 1938, the defendant Kents Lake Reservoir Company filed with the defendant State Engineer an application to change the place of storage of 830 acre feet of water per annum out of a previously awarded storage right of 1,660 acre feet from the South Fork of Beaver River to a proposed reservoir site on the main channel of Beaver River commonly called "Three Creeks." Another application was filed by Kents Lake in March, 1940, with the State Engineer to appropriate for annual storage from Beaver River 1,193 acre feet of water alleged to be unappropriated, the same to be stored in the above mentioned proposed reservoir at Three Creeks.

The plaintiffs, Rocky Ford Irrigation Company and the Telluride Power Company filed protests to the granting of the applications. The State Engineer overruled the protests and approved the applications. Whereupon, the plaintiffs pursuant to Sec. 100-3-14, R. S. U. 1933 as amended by Sec. 1, Chap. 130, Laws of Utah 1937, filed a petition in the district court for a plenary review of the decision of the State Engineer. The district court, after hearing, affirmed the Engineer's decision and this appeal results.

For the most part, the evidence can best be detailed in conjunction with the analyzation of the controlling legal principles, but a few preliminary statements are necessary for a clear approach to the points involved. Kents Lake and both plaintiffs are users of water from Beaver River and its tributaries. The rights of all parties were determined and decreed in 1931 by the District Court of Beaver County in the case of Hardy v. Beaver County Irrigation Company. By this decree Kents Lake was awarded the right to divert and store 1,660 acre feet of water from the South Fork of Beaver River any time between April 1st and June 30th of each year, provided, however, that no diversions for storage could be made when the flow of water in Beaver River, as measured at the government gauging station at the mouth of Beaver Canyon, was below 164 c.f.s. This storage right has a priority date of 1890. Rocky Ford Irrigation Company was awarded: (1) A right to store 25,447 acre feet in the Rocky Ford Reservoir from October 1st of each year until June 30th of the following year with a priority date of 1907; (2) a right to 120 c.f.s. to be used by a direct diversion from Beaver River from July 1st to Sept. 30th each year with a priority date of 1909; and (3) a direct flow right to 150 c.f.s. to be used from March 15th to June 30th carrying a priority date of 1907.

Since the entry of the general adjudication decree in 1931, Kents Lake has never had storage capacity for more than 950 acre feet. During certain seasons since 1931, there has not been sufficient water above the 164 c.f.s. as measured at the gauging station at the South Fork point of diversion to allow Kents Lake to store the full 1,660 acre feet as awarded to it by the decree even if it had had the storage capacity. In 1931, 1934, and 1939 it appears that no water whatever was available for storage. At the new proposed Three Creeks site, there is a substantially larger flow of water--a flow sufficient to satisfy the 1,660 acre feet decreed right practically every season.

In opposing the proposed change in place of storage plaintiffs contend: (1) That Kents Lake, since the entry of the decree awarding it 1,660 acre feet, has forfeited by nonuser for over five years all its rights under the decree to water in excess of 950 acre feet, and that if it continues to store 830 acre feet at the South Fork site, it has at most only 120 acre feet available for transfer to the proposed Three Creeks site for storage; and (2) that were there no forfeiture, the court in allowing a transfer in place of storage from South Fork (where usually the flow is insufficient to fill the 1,660 acre feet decreed right) to Three Creeks (where usually there is sufficient water to fill the decreed right) should limit such storage so that the total amount stored at both South Fork and Three Creeks would not exceed the amount that would have been available to Kents Lake at the South Fork site. Otherwise, it is contended, the proposed change would constitute an enlargement of the Kents Lake rights at the expense of the plaintiffs. If not so limited, Kents Lake could store during most years 830 acre feet at its present reservoirs in South Fork, and every year store 830 acre feet at Three Creks, thus insuring a total of 1,660 acre feet in most years, while at the present location there is seldom 1,660 acre feet available and in some years not even the 950 acre ft.

In support of the proposed change the defendant admits, as well it must (see Hutchins, Selected Problems in Law of Water Rights in the West, 1942, p. 336), that storage under the transferred rights must be limited to the amount that would have been available to Kents Lake for storage at the present South Fork location during the same period. The combined storage at South Fork and at Three Creeks could not exceed the total amount available for storage at that time in the South Fork. The lower court came to this same conclusion, and so stated in its Conclusions of Law, but the decree of the court carries no such provision. This admission by the defendants, which admission plaintiffs assert was made for the first time on appeal, disposes of one of the main objections raised by the plaintiffs to the approval of the application for a change in place of storage.

We next turn to the question of statutory forfeiture by nonuser for over five years. The statute, Sec. 100-1-4, Utah Code Annotated 1943, under which plaintiffs contend that a forfeiture has occurred provides:

"When an appropriator or his successor in interest shall abandon or cease to use water for a period of five years the right shall cease, and thereupon such water shall revert to the public, and may be again appropriated as provided in this title."

This statute was in effect during all times involved in this suit. In construing statutes similar to this, the courts have uniformly held that forfeiture will not operate in those cases where the failure to use is the result of physical causes beyond the control of the appropriator such as floods which destroy his dams and ditches, draughts, etc., where the appropriator is ready and willing to divert the water when it is naturally available. Morris v. Bean, C.C., 146 F. 423, affirmed, 9 Cir., 159 F. 651 and 221 U.S. 485, 31 S.Ct. 703, 55 L.Ed. 821; Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d 535; Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572; New Mexico Products Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 634; In re Manse Spring and its Tributaries, 60 Nev. 280, 108 P.2d 311; Hutchings, Selected Problems in the Law of Water Rights in the West, p. 396.

The uncontradicted evidence shows that there seldom was sufficient water available at South Fork to allow Kents Lake to store the full 1,660 acre feet. In 1931, 1934, and 1939 no water whatever was available for storage by Kents Lake. During every other year from 1931 to 1940, Kents Lake stored 950 acre feet whether it was entitled to store that much or not. There is a conflict in the evidence as to the exact amount of water available each year. Mr. Ullrich and Mr. Lofgren, both civil engineers, were called by the plaintiffs and the defendant respectively. From rather limited and incomplete data concerning amount of snow fall, snow melting records, and data in regards to the area encompassed by the South Fork water shed, they each gave an opinion as to the amount of water available each year. Ullrich concluded that between April 1st and June 30th of each year the following amounts of water were available for storage by Kents Lake:

1931--none

1932--538

1933--566

1934--none

1935--556

1936--684

1937--1519

1938--700

1939--none

1940--489

The corresponding figures given by Lofgren were:

1931--none

1932--1308

1933--566

1934--none

1935--1400

1936--1790

1937--3050

1938--1650

1939--none

1940--1535

It becomes obvious that if the figures given by plaintiffs' witness Ullrich are correct, there has been no forfeiture by Kents Lake, for every year except 1937 when any water has been available for storage Kents Lake by storing 950 acre feet stored more water than its rights entitled it to store. However, if the figures adduced by Lofgren are correct, there has been considerably more water available for storage except in 1931, 1934, and 1939 than was...