*1 аl. et v. WESTWOOD RIORDAN 922.) (203 P. 2d 1949. March 7109. Decided No. Constitutionality J., Waters, 412; C. sec. Am. Jur. 741. See 67 rights, affecting riparian note, L. R. of statute 56 A. 277. Special Giles, Clyde, Atty and Edward W. A. Gen.
Grover Engineer. Watson, Atty. Gen., for Ed H. State Asst. Price, appellant Hammond, for Westwood.
Hammond & Patterson, Lake Bayles both of Salt Knox L. Weston City, respondent.
WADE, Justice. *2 defendants, Engineer, ap- Westwood and the State peal from the of decision the district court which refused approve application by an the defendant Westwood to the Engineer’s State appropriate Office per .25 cubic feet engineer second of approved water. The state applica- this protest tion plaintiff over the of Mrs. Riordan who the owner the on applicant proposes lands which the to divert appropriate question. the waters in appealed Plaintiff engineer’s from the commencing decision action in this the engineer district court both the state and the de- appeal fendant Westwood from that decision. stipulation The matter was on tried of the facts which adopted findings as a of the court’s of fact. The stipulated substance of the facts which are material to this years case prior are follows: That for 80 to the com- plaintiff mencement predecessors of this action and her in question; interest have the land in spring owned that a area has conglomerate existed on lands such which rises in a sand, clay and in sandstone a ravine at the foot of sand stone just Moab, cliffs north approximately of the town of 100 higher any feet in elevation and 500 feet north of cultivated plaintiff lands of spring and that no water from said way except area has ever found its to such lands in times heavy heavy rains. The rains are not in involved this action. years prior at For least to the commencement of this spring action there has sufficient in area support growing brush, patches of a few some small grass scrubby few native and a cottonwood trees. The growth water sufficient to sustain this has from this come downpour hеavy spring area other than the time of rains. During prolonged spring wet seasons water at such quantity sometimes in would rise to surface sufficient top pond form a small but never sufficient to flow on except temporarily from the channel downpour of rains. 1944, Westwood, February 28, prior months
Within 6 public lands, believing spring exca- area was deep for 18 inches wide and 6 inches vated a channel about conglomerate materials a distance of about 50 feet about feet spring area and then tunnelled around the flowed said point he contacted water which at which foot days .25 of cubic per For the first 10 about channel. therefrom, time it but after that second of water flowed second, per cubic foot diminished to about .05 of a 50 feet where a distance of about still continues to flow for striking this flow in sinks into the soil. After water.and lands, believing West- located on it was still engineer applica- in the office of state wood filed objected plaintiff to which appropriatе such water tion to engineer approved hearing thereon the state and after a *3 appeal the district application, was reversed which predecessors in interest plaintiff nor her court. Neither engineer for the state an with have ever filed area, spring nor any this appropriation of water from the done such waters or they beneficial use of made have stipulated facts these any development thereon. On work applica- approve Westwood’s to court refused the district appropriate waters. these tion right the presented whether question here pursuant may acquired to our stat-
use of these public In other appropriation of waters. governing the utes public are whether these we must determine words they subject appropriation. If state, and therefore hand If on the other must be reversed. court are the trial they through pass which belong of the soil they to the owner In that case they are not defendant Westwood affirmed. When must be decision they were discovered land where these waters located long had since domain but part public was not discovery ownership. to the Prior private reduced by arti- these waters developed him or used ever no one had tunnelled that Westwood shows The record means. ficial which, point about feet “at he contacted water which channel,” flowed in said whether it was diffused the soil around the tunnel and drained therefrom into it or directly whether he contacted it flow- ing appear, stream does not appear but it does it be- upon digging came a stream dig- the tunnel. Prior to the ging of the tunnel these waters did not come to the surface they the form of a stream nor did ever flow on the sur- face in channel, only a natural evidence of their exist- prior ence to that time spring area, was that there was a large disclosed, how is not supported grass, which some trees, during bushes and heavy the time of rains some- pond times a was formed on thе surface. Where the waters came they from and spring where went from the area does appear record, from the up by whether were used plant supported, life evaporated into the air or were widely diffused in the soil so that their course traced, could not be or whether a of all three of the suggested disappearance methods contributed to their record does not disclose. appear But it except does heavy times of rain fall when the water flows over the sur- face, none of these plaintiff’s waters ever reach the culti- vated lands spring which are 500 feet from the area. history
From the
present
earliest
time
court
recognized
right
has
that the
to the use of
waters of
acquired by
this .state could be
diversion and beneficial use.
Ivie,
Monroe v.
219 1908, chapter 50, 40 P. 2d Laws of 86 Utah 755. See Utah following appear: 100 wherein the sections Sec. 34. unappropriated the “Rights water of State to the use of pro- may acquired by appropriation, hereinafter in the manner be
vided, appropriation must for some useful and not otherwise. and, appropriators, purpose, the one first or between beneficial ours.) right.” (Emphasis time shall be first Sec. 47. State, in this whether “The and other sources waters of all streams channels, hereby underground, in known or defined above existing rights subject public, property of to all declared be the the use thereof.”
Sec. 49. basis, limit all “Beneficial use shall be measurе rights use of water this State.” throughout history recognized This court its has belong are not waters but they pass soil and are thereof, are owner 438, Mining Company, Spy 11 Utah Sullivan v. Northern
See Mining 186; 709, R. Co. v. Silver 40 P. 30 A. L. Crescent King Mining 444, 244, Rep. Co., 54 70 Am. Utah P. St. 17 810; M. Co. Irr. Co. & M. 19 Herriman v. Butterfield 930; 453, 537, L. A. Irr. P. 51 R. Creek Co. Utah 57 Willow 280, 943, Michaelson, 248, P. 51 L. R. A. 81 21 v. Utah 60 Keel, 96, 687; Rep. Irr. Co. V. 25 Utah Am. Herriman St. 867, 260, 719; Rollins, 125 P. Ann. 41 Utah 69 P. Garns v. 411, 1915C, 1159; Gribble, Utah 134 P. Roberts v. 43 Cas. 586; Green, 311, P. 1014; Stookey Peterson v. 53 Utah 178 729; 70, Mining Co., Peter Utah 176 P. v. Hill 53 Eureka 162, 1087; Lund, P. Deseret Live Stock son v. Utah Midway supra; v. Creek Hooppiania, Irr. Co. Snake v.Co. 157, Cir., 260 U. Mining Co., 8 271 F. affirmed Tunnel & 423; Horne v. Oil Re- L. Ed. 43 S. Ct. S. *5 220
fining Co.,
279,
59
815,
883;
Utah
202 P.
31 A. L. R.
Silver
King
Sutton,
297,
682;
Consol. Min. Co. v.
85
39
2d
Utah
P.
Johnson,
Wrathall
supra;
Olsen,
158,
v.
Justesen v.
86 Utah
However, exceptions there are well established to this early rule. Thus the Spy case Sullivan v. Northern Mining Co., supra, we held that where a man went public developed domain and percolat- water hole where the ing gathered, placed use, waters them ato beneficial acquired owner who later took the same appropriator’s vested to the use of this water. We repeatedly have also appropriаtors held that acquired waters of natural streams a vested interest source of the percolating waters of such streams which was through the soil of belong the lands which domain at the time when the was made. first Wood, See 77, 828; Peterson v. 71 P. Utah 262 Peterson v. Lund, supra; 140, Rasmussen v. Co., Moroni Irr. 56 Utah 572; P. 205, Cole Cole V. Co., & Richards Irr. 27 Utah 376, 75 P. Rep. 101 Am. St. 962. We háve also held underground per flow the waters of a stream which slowly through colate the materials under the stream are a belong person stream do not who owns the lands pass. v. Union & Howcroft Co., Jordan 311, Irr. 25 Utah P. 487. concept Our percolating of what was and what not was changed greatly waters has since that term was used in the early cases. In percolating those cases we described not, “naturally flowing in a stream with well-defined channel, banks, and Mining course.” Crescent Co. v. Silver King Mining Co., supra Again Utah 54 P. [17 245]. percolating “percolating through waters were defined as soil, flowing having stream, in a subterranean no channels, defined courses, or known or banks.” Willow Michaelson, Creek supra Irr. Co. v. 60 P. [21 944]. original concept Thus our all waters which in well defined were *6 legislature channels with courses and banks. The or known quoted, provided in enacted section above which 1903 47 underground in that “whether above or all waters public. known defined are the channels” concept Originally, to have been all under- seems that ground percolating except it flowed water was where through ground in a definite a definite channel with by course omitted and was surrounded banks. statute banks,” probably eased the “courses and words .which being emphasis course which on there a definite stream of water flowed. waters
Until of this court treated the decisions waters, of as and as such artesian basins ownership where such went with the owner of subject located and were not considered to be were occupied basins a subterranian Since such many persons could area owned so that one such owner by withdrawing more than share the waters his thereof, proportionate deprive basin others their share regulation recognized relationship required and we that adopted purpose known the correlative for this we what is as rights theory. Horne Utah Oil and beneficial See v. use Refining Co., supra, Oil Re- and case Glover v. Utah same fining 174, 955, Co., R. 900. The 218 P. 31 A. L. 1921, in that was first cases decided of those was recognized until decision of as the law this state Olsen, supra, in Johnson, supra, and Justesen v. Wrathall v. basins are 1935. These cases held that the waters artesian * * * “flowing de- in known or * * * in that term used section fined channels” as 1933, slight 100-1-1, with amendments R. S. U. 1903, Chapter Laws of Utah the same as Section opinions quoted In the case there were four above. Wrathall result, although far as the with all concurred concerned, questions the court divided herein discussed are opinion Mr. Moffat wrote the main two to three. Justice Ephraim com- Hanson concurred without and Mr. Justice Straup ment and separate Chief Justice also in a concurred opinion. opinions percolat- These hold that the doctrine of ing waters, rights аnd correlative have no case, artesian basins such as was involved in that but such waters were and the doctrine right governs. the first time is the first From although concurring holding-, result, with the Justices vigorous Elias Hansen Folland wrote and exhaustive opinion dissents. The same existed the Jus- division days later, tesen case which handed down a few al- though participate being therein, Mr. Justice Moffat did not replaced by Judge Bates, prevailing District who wrote the opinion, Ephraim which was concurred Han- Justice *7 by son Straup, and Chief and Justice dissented to Justices Elias and Hansen Folland. opinion
Mr. Justice Moffat who wrote main in the the 100-1-1, Wrathall case construed section mean all to flowing underground waters in this state whether above or existing subject rights are the of all the state to to the Straup use thereof. Chief Justice who concurred there- say separate opinion with and also to on wrote a had this 50, of P. 2d : construction that statute Utah [86 790] “* ** adjudicated cases There some confusion in the and waters,’ meaning ‘percolating texts as to the or least of the term at by them. I use the in the sense in which term as term used such privately owned, percolating seeping in lands or diffused ground, moving by gravity any every in or direction along resistance, forming any part a line least not a stream or of of body subterranean, and, other water or either as as of surface far known, contributing tributary any not to or a stream flow of defined body words, or privately water. In other mere waters in of diffused lands, flowing stream, owned not in or known either defined subterranean, forming body or or not a a water surface either of of subterranean, belong or to the owner the soil or surface of may disposed by land fit, long be used and him as he sees so of lands; as such waters are on or in his however, per- if such waters seep colate or from his land on in or and are diffused with lands another, may of pursue waters are lost to the former and he not other; or them on or in may reclaim lands of such nor in such case acquire any right such other or сlaim or interest in diffused waters long former, in his lands. as are on or or so in lands may by appropria- not, privately in owned Such waters so on or lands another, except otherwise, acquired by by grant. To hold tion or overruling prior necessitates, think, I as a number otherwise ‘public jurisdiction. waters are waters’ Such not decisions of subject statute, hence are not to as defined by our hand, de- the other known or another. On a subterranean, forming part stream, fined either surface or in or statute, body subterranean, of a either surface or are of water waters,’ parts, ‘public its when in all characterized as considered * * subject appropriation; ours.) (Emphasis and thus frankly recognized opinions All those eases departure previous concept those decisions were a percolating waters, and that what had been considered they brought governing appropriation under the statutes previously much water which had belong the owners of land and considered oрinions made Several of those suggestions legislature, session, which was then in change legislation necessary or desirable meet this Accordingly legislature concept. did and en- amend 1935, changes. act these Laws of laws to meet See Utah changes chapters previous 105. law 104 and Two 100-1-1, bearing present problems. have on our Section 47, chapter 100, 1933, previously Laws of R. section S. U. 100-1-1, now amended is section following provisions: U. C. A. contains the *8 state, ground are above or under the in this whether “All waters subject hereby public, the to all ex- to the declared be isting rights the use thereof.” to 34, 1933, previously 100-3-1, R. section Section S. U. 100- as amended is section and which Laws of Utah following provisions: contains the 3-1- A. U. C. public unappropriated waters this “Eights use of the to the only appropria- acquired provided may in this title. No as state be rights may initiated made no to use thereof
tion of water recognized except appropriate to shall be intent and no notice of application engineer appropriation made the state first be to for such * * *” provided, and not otherwise. hereinafter in the manner foregoing changes changed In addition to to meet the concepts legislature since the Wrathall case the has made following changes underground with reference 100-3-5, waters: Section R. S. 1933 in 1941 U. was amended Engineer permit to authorize the State to issue a to drill appropriate filed; wells after an had been requiring every per- section 100-3-22 enacted in boring digging purpose son or wells or tunnels for the underground appropriating report waters to the result Engineer; thereof to the State section 100-3-23 enacted in granting junior appropriator replace to a appropriator of a senior at the sole cost of the junior appropriator, 100-5-12, and section enacted in 1935 requiring all claimants to the use of waters to Engineer file with the State notice of such claim within one jrear approval after of that aсt. opinions various the Wrathall and Justesen cases divergence meaning
show a marked on the of the above quoted prior statutes to the amendments. But since the 100-1-1, legislature amendment to section it is clear that the intended, legally possible, as far as was to declare all waters of the state whether under or above the surface of not, public property whether to be subject existing rights to the of the use thereof. Such has probably always regardless been the law of this state of this legislature amendment. Of course the cannot such an change private enactment ownership part their nature were a of the soil and as such belonged to the owner of the land on which are found. concept Our what waters were of the soil and as belonged greatly changed owner the land has early since state, settlement of question and the what water is must be determin- present ed on concepts our standards and we must treat question though concepts our and standards hаd always been as are now. The amendment to section 100-3-1, supra, and the additional definitely enactment in- *9 dicate that any public the future no to the use of acquired waters of compliance this state can be without with statutory provisions governing acquisition of such rights. Appellants concept concede that under the we had percolating what statutory constituted pro- waters and the governing visions appropriation public prior of waters question 1935 the subject waters would not be the appropriation they changed but contend that under the concepts statutory provisions and standards and these waters subject are waters and
Appellants theory percolating contend that the that part belong are a and soil to the owner thereof is out harmony system appropriation, with our and since the changes They should be so treated. contend that such always moving transitory waters are and therefore in their nature and therefore are the same as surface and under- and streams that their nature cannot be private ownership. They argue further contrary theory reparian rights theory is a recognized state; has never been or followed in this contrary that such doctrine is and beneficial use percolat- doctrine in that the owner can allow ing entirely waters to be wasted when should be used development They for the of the state. further contend many that while this court has times stated the course of opinions belong the owner of the binding soil such statements were mere dicta and not the court now. clearly
Some of the cases are dicta. See Sullivan v. North- Spy Mining Co., supra. ern There are other cases where question necessary decision, was raised and for the but in which the same result could have been reached under the appropriation theory because the owners the land also appropriated first used the waters for beneficial use. Mining King Mining Co., See Crescent Co. v. Silver involving tunnelling other cases waters discovered in placed a beneficial the owner of the use land. But
there are other cases where the necessary decision was order to reach the result which the court did reach. See Michaelson, Creek Irr. supra, Willow Co. v. where after the privately bog land was developed owned a marsh in a years hollow from natural causes and for three ran into by the ditch Co., of and was used the Willow Creek Irr. then the owner the land made another ditch and took the away water company. where it could not be used The court held developed that since water after private although property, land was company and had using years, got it company for three still no right percolating to the use thereof because it was belonged through passed. and which it soil This case was not dicta and if not followed it will have to be overruled. percolating part rule that waters are a of the soil belong thereof, long they to the owner as as remаin in soil, generally his adopted while the same courts which rights riparian doctrine, part follow the is not a of that contrary doctrine and to some extent is thereto. Under the riparian rights doctrine the owner of the land no has owner- ship past land, of the waters of the stream which runs his but does have the to have it continue to flow sub- stantially nature, in accordance with and must continue to through allow it to run other in the same manner. But lands percolating doctrine, under this the owner of the through passes lands which it becomes the owner long land, may capture water as as it is on his and use it, brings it or extract the minerals out of which it into his land, gone but after it is from his land he has no further rights Copper Montana-Bingham therein. See Utah Co. v. Mining Co., 672; Copper Consol. 69 Utah 255 P. Utah Stephen Hayes Estate, Inc., Co. v. P. 2d 624. long prevent And as as it land remains his the owner can any taking one else from such waters from his land. In words, doctrine, other under that the owner of the land does any right percolating not have to the waters they they depart soil before come into his land nor after therefrom, part but while are in land are a his belong him, them, during of the soil and and he can do with time, he fit. as sees Thus court treats these waters transitory thing, captured the same while other it is possession thereof, ownership and in his he has the but when gets possession ownership, out his he loses the and it percolating captured treats waters while in the soil as possession in the of the owner of the soil.
The doctrine that and diffused water ais belongs of the soil and to the owner thereof is some respects similar doctrine of and bene- *11 through ficial use. Where natural conditions water at a place continuously percolates through certain is diffused and enough subirrigate the soil near to the surface to ground grow plant thereon, and cause beneficial life to such by water, condition nature constitutes a beneficial use of the thereby and enhances the value of the land and the effect thereof is not unlike the artificial diversion beneficial use of such waters. To the extent that the water is neces- sary produce plant beneficial life on the surface it is not wasted but used is without artificial diversion in its natural state for a beneficial use. placed 100-1-1,
The construction on section R. S. U. flowing waters, in the Wrathall case to the effect that all underground belong public subject whether above or to the existing rights strongly to all thereof use tends any percolating belong eliminate the rule that the soil and are owned the owner thereof. Also in the definitely Justesen case we indicated that the idea that percolating part a waters are of the soil in conflict is with moving our idea that waters could be owned the owner part of the soil as a thereof wherein we said [86 40 P. 2d : 805] ownership moving through “There can be no more of water the soil moving ownership
than there can be across the surface. constantly changing. It is evasive and In either case use must necessity usufructory only.” be in its nature says plaintiff’s repeatedly But counsel that there is no moving. evidence that this water is He to contend seems ground year that the same water from remains year. a Such claim is so far from known facts of the nature
of water and its reactions in the soil that we cannot believe lacking seriously. stipulation that it is made not But in facts which contention demonstrate is incorrect. After the tunnel was made the water flowed a stream ground. disappeared for a short distance then into the plaintiff’s says brief, repeatedly Since counsel his downhill, uphill, judicially water will run and not we must sinking know that this water does not after into the at a lower than circle around level the tunnel again. up earth and back to the tunnel and run out weight There is much to the contention belong part to the owner cannot be of the soil changing. constantly thereof It cannot because part which the of the soil like a rock or other materials of composed may soil is while there be water con- because stantly in water which is there the soil it is not the same day day. cases However the Wrathall Justesen purport did Horne case or the doctrine to overrule the rights, percolating waters of relative nor the doctrine that belong are a of the soil and to the owner thereof. *12 suggested the Horne case and the later distinction between larger cases, cases, in is that the basin was much the later in applying a different rule the two cases. no reason for distinguishing difficulty and the Wrathall But there is no presented Justesen cases from the situation here. basin, in a channel sur-
in an while not artesian body slowly and does move as a un- rounded banks walls greatly impervious But it is der a wide area of strata. spring area of wet with water different from a small through widely diffused the soil near the surface which is through slowly percolates. in those it What is said which bearing problem. cases has little on such Straup concurring- opinion Justice in the Chief his carefully Wrathall case defined what he meant when he “percolating quotation used the term waters.” above. See definition, interpreted While some of the conditions of that if strictly presented, are not here it is hard to conceive of a fully situation which would meet that definition more than this one does. very important
In an arid state like ours it is that all of the waters be used the most beneficial and economical way possible and im- that none shall be wasted. It is also portant the owners of the land shall not be disturbed in the beneficial use of the waters on their land accordance previous with their custom and conditions. That is true whether the use an artificial diversion of water from natural or whether it its course is the result coursing through producing of water the soil and a bene- ficial result in natural state without an artificial diver- its Where, here, sion. in its natural state water is diffused percolates through and near the the soil so surface that produces plant without artificial diversion or it thereby beneficially land, life and affects the its where any person course cannot be traced onto the lands other found, than the owner of land where it is such water soil, they waters and as such are a public waters, are not and the to the use thereof can- acquired by appropriation not be under our always has the law of statute. Such this State and still is.
If such were not the case then there would be much meadow land and other lands that are so situated that sub-irrigated through naturally percolation higher are grounds appropriated could be drained and the strangers though waters carried onto the land of even use of such waters on the lands in accordance with their natural course would be much more beneficial economical if diverted from their natural than would be course onto If are the lands of others. such waters waters and *13 impossible then it would for the owner of the appear land on which ap- to make the propriation for use on his lands their natural state be- require cause such use does not an artificial diversion or required use whiсh right in order to obtain the to the use by waters It every would mean also land naturally owner place who has a wet on his land would have to make appropriate such waters and unnecessarily divert the water from its natural course preserve right in order to though his to the use thereof even it would be more economical and pro- beneficial to allow it to ceed in accordance with nature. Portage
In Irr., Adams v. Reservoir Co., & Power 95 Utah recognized P. right 2d we of the owner of the land spring on which a arose to use sufficient of such water sheep to water his as he had years. done for more than 40 spite This of the fact that we held that acquired he had not right such appropriator as an thereof because he had not diverted it through any regular its natural course artificial diversion continuously works had not used holding recognized same. In right so we that the to the use of water could be established the owner of the land through which it coursed gen- means other than erally recognized statutory and now method of artificial diversion and beneficial artificial, use. There the use was but there point was no except established diversion as the animals came to the stream and drank therefrom. But the great use to put which the water was was of benefit to the owners of the land and the sanctioned, to such use though all of the which point reached the diversion appropriated by below had been others. Here there no artificial diversion or artificial use but in its natural state produces the water land; a beneficial effect on the recognized waters as these have never been always of this state but have been considered as a belonging the land course and as owner of the soil.
231 In this state the beneficial use of all of its waters is of though paramount importance. Waters, even diffused through soil, plant which do not sustain beneficially life or otherwise affect the land necessarily part course are not thereof might placed and to the end that to a bene belong ap ficial use should to the and be propriation the same as other waters. It is clear that a question produce plant a beneficial life plant very limited; thereon. But such life is it consisted only brush, grass patches a few one or two of native scrubby plant one two cottonwood To trees. sustain such probably require very water, perhaps life would little if defendant took all water which he could it still would supplies plant not cut off water which this life. It seems probable that there more than sufficient water area, is, spring small as plant the stream to sustain this life. being case, application approved. Such must be It necessary unap is not that it that be established there is propriated justify waters in ap this source order to application proval appropriate, necessary all that is ground is that there is reasonable to believe that such is v. Eardley Terry, 367, 362; the case. 94 P. 2d Little Cottonwood Water Co. v. Kimball, 243, 116; 76 Utah 289 P. Ford Irr. Co. v. Kents Lake Irrigation Rоcky Co., 104 Utah Whitmore v. 108; 202, Welch, 578, 135 P. 2d 114 Utah Co. v. 954; Jones, 136, Irr. P. 2d Lehi 115 Utah 202 P. 2d approval 892. But the of this does not mean adjudicated unappropriated that it that there is applicant at this source. still has to demonstrate that case before a certificate of such is the can be issued to him. going contends that in
Plaintiff
her
to discover
applicant
trespasser
this water
was a
and that a
against
of water cannot be initiated as
use
the owner of
proposed
point by trespass.
at the
the land
diversion
McKay,
114,
Prentice v.
38 Mont.
Here onto plaintiff’s under the mistaken that land belief it was government privately owned. If it land and not were trespasser. would have been a There is no indi- land he not any faith, damage or bad that he did cation that he acted objected entry any thereon, land one to his or that or surrounding conditions he should have known that under any objections have thereto. Under one would although trespasser, circumstances he was a we hold that his was void. Had defendant been notified or had reason to believe land privately owned it would have his duty proceed 100-3-19, in accordance wth Section U. C. entering A. upon before the land. That section author- applicant izes to obtain a court order to that effect where right the owner refuses him the to enter. Had he deliber- gone ately plaintiff’s knowing onto the land that he was committing might trespass trespass well be that such nullify right appropriate would his this water under but the circumstancеs here disclosed such is not the effect. applicant
Of course the cannot even under this decision plaintiff enter the lands .of further see if he can develop right getting this water permission without either plaintiff condemning from the way over the damages paying land and for all which he causes therein. judgment of the trial court is vacated and the matter proceedings is remanded for further in accordance with party this decision. Each shall bear his own costs.
McDonough, j., concurs. *16 PRATT, (concurring dissenting part; in Chief Justice part). in opinion controversy
amI that the water in in this case, to of not shown be the It nothing public stipulated not water. The facts show more plaintiff’s than sufficient water land to maintain the foliage. showing land in state as to its natural There is no any any flow, otherwise; showing or no channeled showing lake; any an nor artesian basin. Call them you waters, percolating waters, desire, if or there diffused enough carry is not movement to them them from one another, part plaintiff’s land to not mention fact naturally do reach defendant’s land. For all not by the natural know, consumption of the we the stand- value from foliage practical up water of uses all quantity. point of
n comparable position land I don’t think an owner of is in a just dehydrated an food. He doesn’t own owner of green say naturally exaggeration not that the solids. It is big may inducement land have been a condition of the naturally green condition is acquisition. If that its use or land, purely I think the owner local to that due to conditions recognizes opinion prevailing The owns that condition. agree. to mean this, I To hold otherwise seems and with that digging around to see purchaser land must start that each though green, he finds and even what makes his land keep proceedings to merely slightly damp, initiate he must dehydration way, at the hands of it that or else suffer its others. upon party. burden should the other Let the latter upon
show that the water land is owner’s accepted flowing percolat- classes of waters — ing channeled, surface, above or or a lake below and/or making basin; and, showing or an the word artesian “flowing” flowing, just should mean a substantial insignificant and fall in diffusion incident to the in- rise crease of rainfall. or decrease stipulated
As the facts this case do not show con- designated dition, I have above as aas lake or basin, I believe the decision of the lower court should be However, majority agree affirmed. as a do not with me terminating now, as to this matter I disposi- concur in the prevailing directed opinion. tion of the case as (concurring WOLFE, part; dissenting part). Justice opinion with the of Mr. I concur Justice Latimer. I shall *17 legal concept In one further observation. all waters add state, underground, flowing or surface in whether channels, known or defined in whether or sur- basins, percolating through face public private or whether or lands, yet appropriated regardless existing pro- of the are, appropriation always been, cedure for public and have When the settlers came to wаters. first this state took necessary the land and the to make it fruitful. The everyone enjoy beneficially. waters were free to And in today that except status the waters of this state remain grew appropriated. where have As the state legislature developed, was at various concerned times categories public itself with different waters extend- ing requirements statutory ap- to them in certain order to propriate said waters to approp- rather than leave them to by diligence placing to riation them use. The beneficial legislature gave first of these times was in 1903 when the engineer jurisdiction the state administrative over all the waters of all streams other sources the state in known and above or under channels. defined legisla- Chapter Laws Utah 1903. Later 1935 the desiring bring public the balance of the ture waters of engineer, the state this state under control of enacted 100-1-1, A.C. which declared all .Sec. U. waters ground, state, under the in this whether above or are the public, “subject existing rights all legislature by declaration, did not use thereof.” The make previously non-public simply public It what were waters. necessity public extended to all engineer appropriate, and made such order state existing rights. to all The above one, any question view, is the correct avoids which I think legislature “declare” of the constitutional They always public. were until private waters to diligence by application, when latter appropriated necessary method made the opinions of this court of the several I am not unmindful private located which have stated *18 appropriation; private lands were waters not integral the cases were an of the soil. See by Mr. Most of statements were Justice Wade. those cited square holding, in dicta. But two cases there was a Willow Michaelson, supra, Irr. Dive Creek Co. v. Deseret Stock Hoopiania, supra. in Co. v. Even as to those two cases one percolating private of them the lands had beеn waters put diligence right to a beneficial use and hence a had been regard They obtained. were in to which the given engineer statute had not the state administrative jurisdiction required application ap- and had not through propriate, private and hence those owners whose percolated diligence rights land the waters could obtain diligence rights such water without the same as could be obtained in surface waters before the enactment of Chapter 100, every instance, In Laws Utah 1903. with exception, determined, one as far as can be the land owner put percolating by use, had water to a beneficial diligence right. that method obtained percolating The one case in which this court held that belonged private land, waters oh lands owner put where had not the owner the same to beneficial use by claimed before another was Willow Creek Irr. v. Co. Michaelson, supra, decided in 1900. There the defendant had bog suffered water from a on his to run off intо irrigation plaintiff company the creek of the and to be used period years plaintiff of three before the de- any attempted make fendant ever use of the water. The percolating court defined water as * * * through percolating soil, flowing “water or in a sub- stream, having channels, courses, no defined or known terranean or Utah 60 P. banks.” [21 944.] concept percolating Since that time this court’s of what is Straup water has been narrowed. Mr. Chief Justice Johnson, supra, Wrathall v. used the term to mean privately owned, percolating seeping in lands “diffused waters or moving ground, by gravity any every or direction forming any along resistance, part of a stream a line of least not subterranean, and, body as far as or other of water either surface or contributing known, tributary flow defined stream not or to a body water.” P. 2d [86 790.] definition, Guided the latter the waters bog case Willow Creek were since did contribute to the flow the Willow Creek. *19 agree I with Mr. Justice Latimer that there is no evidence way аny ap- that the waters on Jessie land were in Riordan’s use; propriated by putting her to a hence same beneficial diligence right question she had no in which to waters rights preserved clause, “subject existing to all to the use thereof.”
LATIMER, dissenting (concurring part; Justice in part). part prevailing opinion
I concur with that of the which proceedings. holds the cause should be remanded for further dissent, however, I portion that which holds that all developed of the are prevailing opinion attempt
The author of the his rights save some what is considered vested water announces concepts may subsequently of water law with which I dis- agree, I now are not but which do not answer because litigation. dealing involved this are here with under- We ground waters, grave an and I have doubts that artificial right requisite diversion is an absolute to a to use. How- ever, question has never been is not before us as there any attempt part plaintiff on the to use the water Accordingly, purpose. I reserve for future beneficial what an owner of consideration discussion as to might acquire in waters if had land holding beneficially artificial diversion. Our used without Portage Irr., Co., Reservoir Power Adams v. & in the case of suggests question. 648, to this 1, P. 2d answer 72 principle prevailing opinion Another announced in the suggests ruling contrary previously to our decided cases, contrary my understanding hydrology, that water is water and of the soil when surface, apparently close but loses this characteristic depth. supposed proximity if it is found at I had never rights of water to the surface of the land altered the land, changing owner of the or resulted in waters from being being appropriable unappropriable. Legislature appropri-
Prior to had restricted the flowing ation of waters to those known or 1919, Chapter defined channels. Section Laws of Utah provided as follows: State, streams and other sources in this “The water of all whether ground, channels, or under the in known defined above
hereby public, subject declared to be to all ex- isting rights to the thereof.” use During This section was not amended until 1935. year, Legislature passed the act which is now Section 100-1-1, A. 1943. U. C. This section is as follows: *20 state, ground whether or under the “All waters this above are subject hereby public, to be of the declared to all ex- isting rights thereof.” to the use inspection legis- two An acts will disclose a definite intent, as of lative make all waters in this state regardless appropriation for available of whether be surface, underground, diffused, percolating, as classified artesian, provisions section, or otherwise. Under of this appropriate defendant Westwood would be entitled to prior plaintiff water here involved unless to 1935 had ac- quired to the use thereof which could not a be im- change. by legislative paired stipulation facts, questions of there are
Under the two litigation. are involved in which I believe this The first of the water and the on the classification second touches beneficially plaintiff used the water is whether or not has proteсted so as to be in her use. longer question, not
As to the first I believe we should try underground to make fine distinctions between classes of ground is, water. All water the surface of the beneath ground moving according purely simply, and water recognized physics. particular certain well of In this laws originates case, very little, any, plain- if the water on places. It tiff’s land. it must come from other Most of underground plaintiff’s moves onto land and runs under- ground to The flow of the stream de- other locations. underground veloped by movement the defendant indicates stagnant and flow. The water here involved is distinguish motionless, vagrant meandering it is and to pres- it from other waters is inconsistent with day hydrology. principles ent foregoing reason, my opinion In addition to the it is present under of the water is our statute classification However, purposes it immaterial may be, Wade, importance set forth Mr. Justice determining rights prior plaintiff to the 1985 enact- Generally speaking previous ment. cases have held that our percolating person or diffused waters are owned If, therefore, water could who holds title to the land. this water, be classified or diffused as either holdings argued reasonably prior could that because of plaintiff water because it was of this court the owned the realty I need passed with title to the land. sound, argument not, action, decide whether this could, by subsequent and, so, Legislature if whether the right. enactment, impair This for the reason such a facts, appear stipulated these waters sur- under the than rather spring and are concentrated face area spring are previously held that haveWe (Jiffused. flow in this and while the surface *21 by small, to treated may it is sufficient area have been parties spring. as a the principal dissenting, however, goes
My reason for proposition namely, plaintiffs second have never bene- — ficially used this a water that unless beneficial use was public property established before the water became apparently there has While cоnflicting been ownership decisions in this on the state underground waters, I know no decision which has held ownership that either or to use could be established having put without the water been beneficial use. Under facts, stipulated using the use this case consists of enough growth spring of the water to sustain area brushes, patches grass, fewa one or of native two scrubby Apparently seep- one or two Cottonwood trees. age from the course of the water was for this sufficient purpose expended no efforts had been to contain the water its natural channel or it divert normal its path. Such use to me does not a constitute beneficial use. readily While the term “beneficial use” does lend itself definition, to a I it believe can be said in this case that when growth naturally water sustains small sur- rounding spring, is not a use can be termed bene- ficial, meaning within the of our statutes or our decisions. plaintiff attempted Had improve ever to use the water to fertility soil, grow grass vegetation for purposеs, irrigation meadow it use for subterranean products soil, recognized or to use it for other well purpose, plaintiff acquired then I would believe had some rights. However, the record indicates that the water has wasted, period been for the full of time that the land has by plaintiff. Underground owned water should be beneficially either used owner the land or be available for someone who will obtain presence some benefit from permit its in the area. To to be wasted beneficially when can be used keep- is not in ing my concept developing with one of import- the most ant natural resources of the state. holding
I concur that under the facts and circum- case, stances of appropriate should *22 development turned out have been denied because not not an performed plaintiff’s land. This is to have been plaintiff’s enjoin trespassing on defendant from action to continuing trespass, recover land, or to to restrain a future damages already The action compensation sustained. for ap- Engineer’s order was instituted to reverse State though a proving appropriate. Even Engineer committed, trespass was technical was the State making precluded there were a determination that unappropriated at the source. This determination information is not controlled the manner in which the proceed can and further secured. the defendant Whether plaintiff develop or with- the water without the consent legal proceeding out some not before the State other Engineer However, in of the not now before us. view suggest discussed, merely principle fact that the I has. my 100-3-19, opinion A. is not Section U. C. rights defendant, the section which controls the West- seeking required survey wood. He is not to make a to secure making filing, purpose a water what information for develop plaintiff’s land. If he can he seeks is to water on acquire a to do this then it must be because 100-1-6, provisions permits U. C. A. Section purposes securing land if an condemnation of given adequate consideration is therefor.