Sowards v. Meagher

• Decision Date: 22 January 1910
• Docket Number: 2052
• Court: Utah Supreme Court
• Parties: SOWARDS et al. v. MEAGHER et al

108 P. 1112

37 Utah 212

SOWARDS et al. v. MEAGHER et al

No. 2052

Supreme Court of Utah

January 22, 1910

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

Action by N. G. Sowards and another against N. J. Meagher and others.

Judgment dismissing action. Plaintiffs appeal.

AFFIRMED.

D. W Moffat and N. T. Porter for appellants.

Thurman Wedgwood & Irvine for respondents.

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

OPINION

STRAUP, C. J.

The appellants, plaintiffs below, filed an application with the state engineer for the appropriation of waters of the East fork of Lake fork of Green river, which has its source in Wasatch County, and flows southwesterly into the Du Chesne river, a tributory of the Green. By reason of such application, they claim to have initiated a right to the use of three hundred second feet of water of such stream for irrigation purposes. Upon a protest filed by the respondents, the defendants below, who also filed applications for an appropriation of the same waters, plaintiffs' application was rejected and the respondents' approved by the state engineer. The plaintiffs then brought this action in the District Court of the Fourth Judicial District against the defendants to adjudicate the questions involved.

In their complaint it is alleged that on and prior to the 28th day of August, 1905, there were three hundred second feet of unappropriated water of the stream, and that on that day, "at the hour of twenty minutes after nine o'clock in the forenoon," they (the plaintiffs) "filed in the office of the state engineer of the State of Utah" their application in writing to appropriate three hundred second feet of water to be used each year from January 1st to December 31st, to be diverted from the Green River system, Wasatch County, at a particularly described point on the East Fork of Lake fork of Green River. In such application the diverting works and channel were described, the purpose of such appropriation stated to be for irrigation, and the lands proposed to be irrigated, consisting of a total area of 33,680 acres, described by reference to legal subdivisions. It is further alleged that the defendant Meagher on the 31st day of July, 1905, and the defendant Jarvis on the 19th day of August, 1905, made applications to appropriate the same water by filing written applications with the state engineer, but that at the time of such filings "all of the said waters applied for" by them "the proposed point of diversion, and the lands proposed to be irrigated, were all a part of, and included in an Indian reservation within the state of Utah set apart exclusively for the use and occupation of the Indian wards of the federal government, which was reserved from the public domain and under the exclusive control of the United States of America, and that all matters and things pertaining to the appropriation of said water were done upon the Indian reservation so exclusively controlled as herein set forth, and that these plaintiffs filed the first application to appropriate the waters" of the stream in question "after the opening of said reservation." It is further alleged that the rights of the defendants Meagher and Jarvis, acquired by them by reason of their applications, were assigned to the defendant the Dry Gulch Irrigation Company, who in March, 1907, "protested the granting of these plaintiffs' application," which was in June, 1907, rejected by the state engineer on the sole ground that their application "is in conflict with the prior applications" of the defendants Meagher and Jarvis. It is further alleged that the defendants have no right, title, or interest whatsoever in or to any portion of the water applied for by the plaintiffs; that they be required to set forth whatever rights or interests are claimed by them; that such claims be adjudged to be unfounded and of no effect; and that plaintiffs' rights and title in and to the use of the waters be determined, quieted, and confirmed. A general demurrer for want of facts was interposed to this complaint, which was sustained by the trial court. The plaintiffs stood on their complaint and declined to amend. The action was thereupon dismissed. They appeal.

The only question presented for review is the ruling of the court sustaining the demurrer. The statute (Comp. Laws 1907, sec. 1288x et seq.), so far as necessary here to notice, provides that, in order that one may acquire the right to the use of any unappropriated public water, he shall make an application in writing to the state engineer, setting forth, among other things, the nature of the proposed use for which the appropriation is intended, the quantity of water to be used, the time during which it is to be used each year, the name of the stream or source where the water is to be diverted, the nature of the diverting works, the dimensions, grade, shape, and nature of the proposed diverting channel, and such other facts as will clearly define the full purpose of the proposed appropriation. It further provides that, "if the proposed use is for irrigation, the application shall show, in addition to the above required facts, the legal subdivisions of the land proposed to be irrigated, with the total area thereof, and the character of the soil." It is further provided that, if the application is conformable to the requirements of the statute, the engineer shall receive and record it, and shall publish a notice of the application. At any time within thirty days after the completion of the publication, any person may file with the state engineer a written protest against the granting of the application. It then becomes the duty of the engineer to approve or reject the application. Either party aggrieved may then bring an action in the district court for the purpose of adjudicating the questions involved. It is further provided that, in his indorsement of approval of an application, the state engineer shall require that the actual construction work be commenced within six months from the date of such approval, and that it shall be completed within five years from such date. But the engineer may allow in some cases an extension of time to complete such work, or may limit the applicant to a less period of time. It is further provided that, upon the completion of the work, proof shall be made and maps filed showing the nature and extent of the completed works, the stream or source, and place where the water, and the quantity thereof, is diverted, the character, grade, and dimensions of the diverting channel, and other things showing the diversion and appropriation of the water. Upon such proof a certificate of appropriation is then given the applicant, a copy of which is filed with the state engineer and one with the county recorder of the county where the water is diverted.

It may be judicially noticed, and here stated, that Congress in 1902 ordered the unallotted lands of the Indian reservation referred to in the complaint to be restored to the public domain on the 1st day of August, 1903. That time was extended to October 1, 1904, and again to March 10 1905. On March 3, 1905, Congress again extended such time to September 1, 1905, but authorized the President of the United State by proclamation to fix an earlier time. Thereupon the President, on the 14th day of July, 1905, issued a proclamation restoring the unallotted lands of the reservation to the public domain, and declaring such lands open to entry, settlement, and disposition on and after the 28th day of August, 1905. It will be observed that it is alleged in the complaint that the defendants filed their applications with the state engineer for the appropriation of the waters in question on the 31st day of July, and the 19th day of August, 1905, after the proclamation was issued, but before the reservation was actually opened and the unallotted lands restored to the public domain, and were subject to entry, settlement, and disposition. Because of such fact, and of the further allegations in the complaint that "all of said water applied for and the lands proposed to be irrigated" by the defendants "were all a part of and included in" the Indian reservation, it is urged by appellants that no right or title in or to the use of the waters or the lands could then lawfully be acquired or initiated; that the State of Utah could not prior to the 28th day of August exercise any jurisdiction over the waters or the lands of the reservation; that the defendants were mere trespassers, and that their applications were void. But, since the appellants filed their application with the state engineer on the very day that the reservation was opened "at the hour of twenty minutes after nine o'clock in the forenoon" of that day, it is asserted by them that a right in and to the use of the water and also in and to the lands proposed to be irrigated by them could then lawfully be acquired, and that a right in and to the use of the water was initiated and acquired by them by the filing of their application. Upon these premises, it is urged that the engineer erred in rejecting their application and approving the applications of the defendants, and that the court likewise erred in sustaining the demurrer. It is now well settled and recognized that there is a distinction between initiating or acquiring a right to the use of unappropriated public waters on public domain, and a right or interest in or to the public lands themselves, and that the former is not dependent upon the latter. To initiate and acquire a right in and to the use of unappropriated public water, whether on the public domain or within a reservation or elsewhere, is dependent upon the laws or customs of the state in which such water is found. Property in and to the use of...