*1 likеly of such to know the facts because relationship. usually same is denied counsel where source of information intimate, an Ms would the declarant since was relatives knowing have the same interest facts because wholly is in If unrelated to whose status issue. person therefore, realizes, likely a witness impeachment case, highly other, the one but remote in he would bе less prone fear when penalties perjury parroting aof statements non-relative declarant.
McNaughton et ux. v. EATON et al. (242 670.) No. 7646. Decided March *2 J., Waters, method, appropria- See 67 C. sec. 450. Water diversion tion, by. Jur., Waters, 304; affected 56 Am. sec. 121 A. L. R. 1044. Colton Hammond, Vernal, & Dillman, Dillman & Roose- velt, Hansen, Elias City, Salt Lake for appellants. *3 Clyde,
E. City, Ray W. Nash, Vernal, Salt Lake E. respondents.
WADE, Justice. McNaughton
The defendants use waters of Gulch land, Vernal, below plaintiffs’ They near Utah. appeal judgment holding from a question that percolating waters and a of part plaintiffs’ soil and there- subject fore not public waters nor to appropriation. right court further held that to plaintiffs’ such waters is subject not control nor limited to a beneficial use. Defendants contend that these are public waters and sub- ject to and appropriation that the to the use thereof is limited to required the amount satisfy the reasonable and efficient beneficial they use to which have been ap- propriated. seriously Defendants do not contend that their appropriations are prior to If plaintiffs. these are public defendants, junior as appropriators, are entitled to the use of all the required waters not satisfy all prior rights under reasonably They efficient they use. claim that were denied a fair trial because both assumed parties throughout waters and these were the trial that public regulation hold- subject to theory contrary ing to the were not public giving sides, them a fair made without oppor- was both in the trial. tunity which was raised to meet that issue by the They contend that some of the facts found further by the evidence. Under the facts court are not supported we conclude that these are waters of of this case and that this state appropriation, plaintiffs’ to the thereof under their is prior appropriation regulation required and limited to the amount efficiency satisfy reasonable beneficial use holding their In view of nec- this it is not appropriation. essary to consider the other raised. points Plaintiffs,
There is little in the Mr. conflict evidence. McNaughton, through eighty and Mrs. own acres of land McNaughton which the Gulch Their land located passes. is center, near the from north to south of the west half of a Vernal, Utah, extending section near from east to west square forty across that half section. It is divided into two tracts, being contiguous forty acre the north half of the east gulch to the south half of the one on the west. The passes ' through talcing slightly south side of these two forties a easterly south of course. More than a mile upstream gulch land, west plaintiffs’ is intercepted Ashley tight Canal which Upper is construсted dam as gulch gulch across the so that the water in the above is headgate canal, turned into the in the east or placed discharge lower *4 gulch. bank of the canal to water into the gulch From this slightly intersection the runs south of an easterly through ground direction two sections of where it Ashley intersects with the roadway Central Canal at a below all of the land involved in this aсtion. The land some gulch distance on each side of the toward it slopes forming thus a drain for the waters on either side. It was by resulting formed drainage erosion from the natural of waters from natural in sources the historic before the past gulch from three varies man. The white of the
advent feet in to fifteen depth from five width and rods in five surrounding country either on side. banks steep gulch gradual toward the nearly slope flat with is located lands generally of east. Defendants’ to south half of the same section. land in the east below plaintiffs’ gulch course before the advent a natural water This was neighborhood. irrigation Its banks steep water in this of the the waters from land on and the fact that it drains by flood clearly it was washed out show that both sides coursing through it. Much of the water which drains underground ground by into it sink into the and reach it gulch flow. The the the ap- witness who saw before irrigation surrounding of on the lands said plication gulch dry it then. He that he the was testified saw first year constructed, canal was when upper years he old or was five less. He does not tell the time of year dry year. nor it whether was a wet or season or Though during dry irrigation gulch seasons prior dry during was we cannot the conclusion that escape wet water seasons flowed in it and formed a natural water course. gulch
The flow of greatly the water in the was increased application irrigation water from and after 1886. Some of this irriga- increase resulted because some of the tion plaintiffs’ waters for directly land were turned into gulch and it was used aas lateral for some distance carrying lands, that water to those sometimes waste or surplus canal waters were drained out of the canal into gulch drainage and some waters came from and under- ground irrigation flow from the within the lands drainage gulch. area Defendants do not claim the plaintiffs’ to use canal water but even that water is appropriated lаwfully gulch and cannot be wasted. The plaintiffs’ water was diverted and on land used about as it any now before such waters were diverted onto defendants’ land and were both diverted to 1903 prior
399 right when the to use waters could be established by to a beneficial The court’s use. trial finding plaintiffs’ rights prior that are to defendants’ are approved. gulch by
Plaintiffs divert dams. these a number of highest quarter upstream one is about a from of mile conveyed their land and the water is onto their land below boundary means of a line ditch. The lowest one on the plaintiffs’ between than two forties and a little more quarter of a mile land from the downstream onto their boundary west line thereof. the water which So plaintiffs claim, gulch through drains into the the lands long upstream others for about four a distance times as through plaintiffs’ than All in- own of these waters land. cluding directly through plaintiffs’ those which are drained gulch land collected into a stream into the land into the gulch they again from the so at the time of the diversion above-ground percolat- are in an stream and not diffused or ing waters. basis, limit of
Beneficial use is the
the measure
rights
has been
of water
this statе. 1 Such
use
a statute to
under and before we had
the law both
acquire
more
to use
effect.
one can
No
efficiency,
necessary, with reasonable
water than is
strang
requirements,2 even
satisfy
his beneficial
sys
improvements to water
ers have been allowed to make
thereby acquire the
tems which would save water
reduced
beneficially
And water
the water saved.3
A. 1943.
1 Section 100-1-3. U. C.
Co., 120
Spanish
Irr.
235
Fork
Field
Utah
2 Jackson v.
West
Kimball,
289
Co. 918;
Utah
Little Cottonwood Water
P.
Terry,
to not in bad be wasted and thereby deprive others of beneficial use.4 its waters, seeping percolating
Prior to 1935 diffused
flowing
any
supply
not shown to be the source of
stream
others,
part
on the land of
of the soil and
was considered
belonging
public
to the owner thereof and therefore not
subject
appropriation.5
nor
to
This included artesian
waters
underground
and other
to be
basins
waters
shown
flowing in
and channels.6
well defined courses
banks
At that
time we held
of artesian basins
belong
to the
and are
to
ap
statutory provision
since no
had been made for their
right
past
propriation the
to use
waters had in the
been
such
acquired by aрpropriation to a beneficial use the same as
right
ground
acquired
above
streams had been
use
requiring
application
before the 1903 statutes
an
to be filed
Engineer
purpose.
See Wrathall
with the State
755;
Olsen,
Johnson,
50,
Justesen v.
40 P. 2d
86 Utah
Immediately
Utah, 158,
86
flowing ground above or under in known or defined natural chan- nels, hereby property public, declared to be the of the existing rights to the use thereof.”
In case, the Wrathall supra, Mr. Justice Moffat prevailing opinion construed that section to mean that all flowing, which are underground, whether above or belong public subject to the existing rights to all to the use thereof and that such waters may acquired by be appropriation to a beneficial use. Mr. Straup, Justice concurring opinion required which was majority make a court, seems to exclude from the *7 public diffused, seeping waters percolating and waters which are not shown to contribute to a natural stream flowing beyond boundary the of the land of the owner on which such legislature diffused waters are found. The session, which was immediately then in amended the above quoted section which amendmеnt is now Section 100-1-1 U. C. A. 1943 to read: state, “All waters in ground whether above or under the are
hereby property public, subject declared to be the of the to all exist- ing rights to the use thereof.” This amendment question all eliminated of whether or not the diffused, waters seeping are percolating; and of they flowing whether are stagnant or and does not even exclude therefrom waters which appropri- have been once ated and beyond allowed to flow the appropri- control of the ator. It declares all in waters this state property subject “to public, be the of the existing rights to all thereof”, Chapter 3 of provides Title 100 the whereby method to the use unappropriated waters of this may state acquired. be in the casе of
In we construed this amendment Westwood, Riordan v. application appropriate approved to
There we Westwood’s by excavating produced he small of water which stream only with wet area spring in Riordan’s land a small plant life some beneficial moisture to sustain sufficient any part reach flow in a stream or but not sufficient to finding beyond, reason farm оther lands of Riordan’s or might be appropriated of this stream part believe destroying the by use without a beneficial Westwood supported. plant water life which such diffused beneficial quoted and said from above amended action We intended, legally legislature it was as far as “it is clear that state, under or possible, of the whether above to declare waters flowing not, ground whether or be the surface rights existing therof. Such has property the use regardless always this amend- probably of this state been the law ment.” of this state which Under decision waters ground through naturally percolating are diffused belong in which and therefore to the owner of the soil and are limited are found presence confer a their in the soil to such which destroyed by which will benefit on the land be natural dealing being Here we are not appropriated. with the waters from the soil but the collection diffused already in a collected stream to use waters which have gulch, which have been of a natural some of the bottom *8 irrigation seeped per- applied and then to the land channel; keep however we should into the natural colated course the natural water from mind that this is originally diverted. canal water was which the Jones, 136, 202 P. Irrigation v. Lehi Co. In appropriate application 892, approved an we 2d and then al appropriated and used once had been which original from lands of the seep percolate lowed
403 appropriator beyond a into nаtural water course the con- original appropriator. trol of the 100-1-1, 1943,
Section
U. A.C.
dedicates all the water of
subject only
existing rights
this state to the
use
It
previous
use thereof. makes no distinction between
ly appropriated
beyond
waste waters which are
original appropriator
control of the
and the flow of
streams,
100-3-1,
natural
and under section
U. C.
1943,
following
chapter
A.
sections of that
all un-
appropriated public
by
waters are
compliance
statutory regulations.
with the
Under similar
generally
statutes it
held that such waters are
regulation
appropriation and
in the
reasonable
interest
efficiency and to
But the
waste.8
prevent
re-appropriator
require
appropriator
of such waters сannot
the first
shall continue to waste such waters so that
will be
original
reappropriator.
ap-
available for
8 Hutchins,
Rights
West, pp. 362-368,
in the
Water
127-137. See
Morris,
614,
page
also Wills v.
100 Mont.
404 long
propriator
possession and control thereof
as he has
as
right
to
may
use of such waters
or transfer
sell
long as he does so
reappropriator as
someone other than the
used,
may
good
they
beneficially
re-
or he
faith and
are
if
does
capture
use
he
them for further beneficial
use
get
property
See
they
beyond
and control.
his
so before
Co.,
Ins.
Central
Bench Irr. Co. v. Union
West
Smithfield
appeal,
866,
on
case
second
142
same
Utah
Seely,
249;
Lasson
195 P. 2d
Utah
different means: Waters surplus waters sources; (2) and waste canal from nаtural them; get gulch merely rid turned into irrigate on both sides (3) lands canal waters used to plaintiffs’ gulch it above which drain into irrigate plaintiffs’ lands lands; (4) canal water used dam; and gulch plaintiffs’ lowest above but drain into the by them gulch used to be (5) turned into the canal waters di above of the irrigate three their lands. The first the waters appropriation either as are visions ap been once which have or waters of a natural stream course a natural water drain into propriated allowed to but original The last beyond appropriator. the control appropriation because are not two divisions right have plaintiffs who possession of in the are still trial original appropriation. The under the to use them prior correctly plаntiffs have that held court three to the first as because all of these use of to a beneficial appropriated them they had first divisions was appropriate application to no when before 1903 use holding plaintiffs’ necessary, court erred but subject to reason are not rights of these to the use saving water. interest in the regulation control able appropri subject to of these that all It clear acquired to their can be ation as use, defendants reasonably beneficial efficient ais *10 subsequent appropriators are entitled to use of of the all satisfy such waters necessary requirements not such plaintiffs. of
The case is remanded with direction that corrections be in opinion. appellants. made accordance with this Cost
McDONOUGH, HENRIOD, JJ., CROCKETT and concur. WOLFE, (concurring). Chief Justice concur, concurring I my but I I reiterate what in said opinion in the Westwood, 215, case of Riordan v. belongs all that rain and snow water the public regardless of land upon. whose it falls Like fugitive substances, belong it except can no one the else public. As opinion suggests, the main al this must have ways through Legislature bеen so. The pro State the gressively categories water, pro extended to various of rights acquiring general regulations cedures for and categories to these in opinion. as set out in detail the main regulation But fact progressively applied the that the State acquisition rights to the of use in water does not disturb the principle water, fundamental that all the whether in rain, form ice, of snow or at it least from the time reaches belongs land public— within the confines of this state to the people legislature 100-1-1, the state. in when § 100-1-1, R. in S. U. 1933 and the amendment now section U. property C. A. declared certain waters “to be the recognized public,” always fact had so. been At upon this time we are not called to determine whether reaching grоund belongs rain or snow ground. before it touches the We are now confronted catching drop mechanical which means quantity from the heavens before reach the earth transporting making and them. ifBut scientific rain will locality enable clouds to be moved one to another and from disgorge may then their we see time when question or, of who owns water the clouds anоther put way, may important. the clouds themselves become Rehearing. 2,May
Order on rehearing petition hereto- Upon for consideration thereupon arguments of counsel fore filed herein here- had, judgment of it this court now ordered that the is, be, amended the same tofore entered March appellants by striking therefrom the award of costs substituting party, costs awarded either therefor no rehearing petition be denied. *11 & DEPOT CO. RAILWAY CREAMER OGDEN UNION 576.) April 9, (242 P. 2d No. 7664. Decided