United States v. Caldwell

• Decision Date: 17 October 1924
• Docket Number: 4112
• Court: Utah Supreme Court
• Parties: UNITED STATES et al. v. CALDWELL, State Engineer (UPPER BLUE BENCH IRR. DIST., Intervener)

231 P. 434

64 Utah 490

UNITED STATES et al. v. CALDWELL, State Engineer (UPPER BLUE BENCH IRR. DIST., Intervener)

No. 4112

Supreme Court of Utah

October 17, 1924

Rehearing Denied December 15, 1924.

Appeal from District Court, Fourth District, Duchesne County; Elias Hansen, Judge.

Action by the United States of America and another against R. E Caldwell, as State Engineer, and another. Judgment for defendants, and plaintiffs appeal.

AFFIRMED.

Ethelbert Ward, of Denver, Colo., and Charles M. Morris and Edw. M Morrissey, both of Salt Lake City, for appellants.

M. B. Pope, of provo, D. O. Willey, of Salt Lake City, and L. A. Hollenbeck, of Duchesne, for respondents.

FRICK, J. GIDEON, THURMAN, and CHERRY, JJ., concur. KIMBALL, District Judge, dissents. WEBER, C. J., did not participate.

OPINION

FRICK, J.

The plaintiffs hereinafter called appellants, as trustees for the Indians named in the title, commenced this action in the district court of Duchesne county against the state engineer of Utah to set aside a certain order made by the engineer.

The action is brought pursuant to our statute which permits any person who is affected by any order of the state engineer affecting water rights to test the legality of such order by bringing an action which is in the nature of a review of the orders made by the state engineer. The Upper Blue Bench irrigation district, as the real party in interest, hereinafter styled intervener, was permitted to intervene in the action.

Issues were duly joined between the parties, and a hearing was had in said district court in which all of the material facts were stipulated by the respective parties upon which the district court made its findings of fact and conclusions of law in favor of the intervener and entered judgment accordingly, from which this appeal is prosecuted.

In order to assist the reader to a clear understanding of the real questions involved, we here insert a copy (reduced in size) of the official plat or map that was by agreement of the parties introduced in evidence and made part of the proceedings in the district court, all of which are certified to this court in the form of an original bill of exceptions.

[SEE MAP IN ORIGINAL]

In view that the foregoing map, when supplemented by the statement of facts which follows, will give the reader a full understanding of the questions presented for decision, we refrain from incumbering this opinion with the lengthy statement of facts and conclusions of law aforesaid. It must suffice, therefore, to state that from the undisputed facts and findings of the court it appears that the appellants, for the use and benefit of said Indians, are prior appropriators of 125.03 second feet of the waters of Lake Fork river shown on the plat, which water is diverted from said river by what is called the Red Cap canal at the point marked "1" on the plat. The lands irrigated by that canal are indicated on the plat by the letters "A" and "B," amounting to 8,751.74 acres. The intervener desires to obtain water to irrigate what are designated on the plat "Upper Blue Bench Lands," amounting to approximately 18,000 acres. With that end in view, the intervener, pursuant to our statute, applied for and obtained the right to take from the stream designated "Rock creek" on the plat 250 second feet of water. In order to irrigate the said Blue Bench lands, the intervener proposed to divert the water from said Rock creek at the point indicated by the figure "2" on the plat, and it intended to convey the water to said lands through the proposed canal indicated by the broken line on the plat commencing at the point marked "2." It was found, however, that by reason of the formation of the rocks and the very porous nature of the soil along the line of said proposed canal it was impractical to construct the same, except at a cost which would practically defeat the project. The intervener, therefore, pursuant to our statute, made application to the state engineer to be permitted to divert from the stream indicated "West Fork" at the point marked "3" on the plat, a tributary of Lake Fork river, sufficient water to irrigate the Blue Bench lands upon the condition that the intervener should deliver to appellants an amount of water equal in quantity and quality to irrigate the lands marked "B" and "C" on the plat. (We omit to state the quantity of water in second feet, as that is not material to the questions involved.) To accomplish that object the intervener proposed to divert the water from the Duchesne river at the point marked "6" on the plat and to discharge a sufficient quantity to irrigate the lands marked "B" into the Red Cap canal at the point marked "4," and to discharge the remainder into the Lake Fork river at the point marked "5" on the plat. In view, however, of the topography of the county, the intervener cannot supply water to irrigate the lands marked "A" on the plat from the Duchesne river; hence it proposed to permit sufficient water to accomplish that purpose to pass its diverting point marked "3" on the plat on the West Fork of Lake Fork river and permit the same to flow down the Lake Fork river to the Red Cap canal to irrigate the lands marked "A." By diverting the water from the several streams at the points and in the proportions indicated, the intervener can obtain sufficient water to irrigate the Blue Bench lands at a greatly reduced cost, while the appellants will obtain precisely the same quantity and quality of water that they now receive to irrigate their lands marked "A," "B," and "C." It will be observed, however, that in diverting the water to irrigate appellants' lands as proposed by the intervener, and as authorized by the district court, the water cannot all be discharged into Lake Fork river at a point which is above appellants' point of diversion, namely, the point marked "1," where the Red Cap canal taps Lake Fork river, but some of the water used by appellants must be discharged into Red Cap canal at the point marked "4" to irrigate the lands marked "B," while the remainder of the water, or sufficient to irrigate the lands marked "C," is discharged into Lake Fork river at the point marked "5." The court found, and the finding is not and, under the stipulated facts, cannot be assailed, that in diverting and distributing the water as proposed by the intervener the appellants would in no way suffer injury or damage. Indeed, in view of the local conditions, which are pointed out by the state engineer in his report, which is made a part of the record, the appellants are not only not injured or damaged, but they may ultimately be benefited by the exchange of water as proposed. Upon the other hand, the engineer's report also shows, and the court found, that the exchange of water as proposed will make it possible and practicable to irrigate a large tract of land, which, in view of the local conditions, cannot be done if the exchange of water be not made.

The appellants, however, pursuant to our statute, protested the intervener's application, and, failing in their protest before the state engineer, they instituted this proceeding in the district court to have said engineer's order vacated and set aside. As indicated, the district court approved the state engineer's order and entered a decree permitting the intervener named therein to make the proposed exchange of water as hereinbefore stated. Hence this appeal. Appellants' contention in this court, in substance, is that both the state engineer and the district court exceeded their jurisdiction and power in authorizing the intervener to make the exchange of water as proposed and as fully set forth in the decree.

Referring now to our statute, Comp. Laws Utah 1917, § 3470, as amended by chapter 67, § 9, Laws Utah 1919, provides:

"Upon application in writing and approval of the state engineer, any appropriated water may be turned into the channel of any natural stream or natural body of water or into a reservoir constructed across the bed of any natural stream, and commingled with its waters, and then be taken out, either above or below the point where emptied into the stream, body of water or reservoir, but, in so doing, the original water in such stream, body of water or reservoir must not be deteriorated in quality or diminished in quantity, and the additional water turned shall bear its share of loss by evaporation and seepage and of the maintenance of said reservoir, and an equitable proportion of the cost of the reservoir site and of the construction."

Prior to the amendment of 1919 the law permitted "any appropriated water" to be turned into any natural stream, etc., without making application to the state engineer, and without obtaining his permission so to do. See Spanish Fork City v. Spanish Fork, etc Co., 46 Utah 487, 151 P. 46, where this court, before the amendment of 1919, held that any appropriator had the right under the statute to turn appropriator had the right under the statute to turn appropriated water into a natural stream and commingle it with the waters therein, and to take the same out of the stream at a point lower down or take an amount equal to the amount put in, less seepage and evaporation, from a tributary of the stream at a point higher up the stream, if to do so enlarged the use of the water and the same could be done without injury to a prior appropriator. In view, however, that the right just stated might be abused, and that complications might arise, the Legislature wisely amended the statute, and thus provided that before water can be turned into a stream and again taken therefrom application must be made to the state engineer for permission, and that such permission should be obtained only after due notice and a hearing before the...