304 P.2d 964 | Utah | 1956
This is an intermediate appeal from an order entered in a general water adjudication suit, rejecting appellant’s underground water claim, except as it applied to the irrigation of 28 acres of land. Reversed, with instructions to order the Utah State Engineer to reinstate Application No. 11870, with permission to applicant and his successor in interest to submit proof. No costs awarded.
In 1946 appellant purchased land from one Bradshaw, upon which was situated a water well flowing 1 c. f. s., which had been put down in 1934, a few months before the legislature in March, 1935, enacted an underground water bill
Shortly after the 1935 legislation, and in October, 1935, Bradshaw filed an application in compliance therewith, asserting a ' claim to water a maximum of 80 acres. Apparently out of caution, later he filed another application claiming the same right, basing his claim, however, on the' theory that in digging the well he had initiated a right to water 80 acres and could perfect such right in futuro when and as he broke the land. Thereafter the state engineer in ' writing advised Bradshaw in substance and effect that this second application was the effective one, that the first application should be withdrawn and that the engineer was prepared to reject it because in his opinion there was no appropriable water, all of which, however, the engineer pointed out could be tested on appeal. Bradshaw took the engineer’s advice and withdrew the original application, which the lower court ' found to be invalid by reason of lapsation. Some years later a successor state engineer took a different point of view,, and the present state engineer takes the position that the second application filed would not permit of perfecting rights after the 1935 legislation because the water had not been put to a beneficial use prior to the effective date of the legislation.
All this points up two questions we must meet head on: 1) Did the 1935 act preclude the perfection of any right to use underground water that theretofore had not been put to a beneficial use ?, and 2) Is the appellant here precluded from asserting rights and making proof under the application which he withdrew at the behest of the state engineer?
As to 1) : The 1935 act, so far as it is pertinent here, provides that “No appropriation of water may be made and no rights to the use thereof initiated and no notice of intent to appropriate shall be recognized except application for such appropriation first be made to the state engineer in the manner hereinafter provided, and not otherwise.” There is no provision anywhere in the act for the perfection of rights already initiated, but not completed, as there was in the 1903 legislation,
As to 2) : The appellant, and before him, Bradshaw, acted in good faith at every juncture with respect to the pursuit of the water right in question. Apparently out of an abundance of caution, Bradshaw filed his application after and under the 1935 legislation, and thereafter was induced by an honest but erroneous decision of the state engineer to forego his rights under such application, and was lulled into a sense of security which implied and represented that the second application he had filed, was proper, the type of which we now hold would give no rights save those that may have accrued prior to 1935. Under the particular facts of this case, (and none other) where Bradshaw, a farmer looked to the top state water administrator for procedural guidance in perfecting a water right under a new and untested act that represented a radical departure from historically established practice and precedent, and where the appellant, in good faith, purchased the land, — quite invaluable without water, — and irrigated it for many years under the assumption that he had an unimpeachable right to use the water which appeared to be appurtenant to the land, sans mala fides of any kind, simple principles of equity demand that he be relieved of the error of the one person to whom he naturally and not unreasonably looked for counsel. He should be permitted to pursue his withdrawn application and to take advantage of priorities that would have inured to his benefit, but for such withdrawal.
Chapter 105, Laws of Utah 1935, presently Title 73-3-1, Utah Code Annotated 1953.
. Chap. 100, Sec. 72, Laws of Utah 1903: “ * * * any person, corporation or association who may have heretofore filed notice of appropriation of water, or initiated any right under the provisions of said laws, may complete and perfect ' such appropriation or right * * ,