143 P.2d 278 | Utah | 1943
Lead Opinion
The background facts are set out in full in the opinion reported in
These two contentions are interrelated and can be discussed together. It is the position of the petitioners that where, as in this case, an adverser makes diversions from a natural stream from which numerous other appropriators take their water, it cannot be ascertained who is being adversed 1 or whose water is being taken. One of the requisites necessary to the acquisition of title by adverse possession is the requirement that the use by the adverse claimant be a clear invasion of the appropriator's rights — that it be hostile to him and under such conditions that he would have an opportunity to prevent it. As stated in Smith v. North Canyon Water Co.,
"must have been accompanied by all the elements required to make out such adverse possession; the possession must have been actual occupation, open, notorious, hostile, and under a claim of title exclusive of any other right, continuous, and uninterrupted for a period of seven years."
Some courts have held that it is necessary that notice of the use be actually brought home to the owner whose right is being adversed; others have held that since the rules of "adverse use are punitive, to induce watchfulness," that it "is sufficient if the adverse use was open and without 2 attempt at concealment." Weil, Water Rights in the Western States, Vol. 1, Sec. 585. This court is apparently committed to the view that while it need not be shown that notice of the use was actually brought home to the owner so that he had actual notice of the claimed right, it is nevertheless necessary that the facts be such that it would be inferable that the owner knew of the adverse use. See Utah Power Light Co. v.Richmond Irr. Co.,
When a diversion by an adverser is made from the natural stream before the owner has reduced the water to possession, it might be at times impossible to ascertain whose water the adverser is taking. The fact situation might be such that it would not be inferable that the owner *501
had knowledge of the claimed adverse use. This situation is discussed in the case of Campbell v. Wyoming Development Co.,
"Furthermore, the adverse use must have been with knowledge and acquiescence of the Development Company, 67 C.J. 947-950. A man ought not to be deprived of his property unless he knows that another claims it and, knowing it, acquiesces. 2 C.J. 76. These factors are the sine qua (quibus) non of prescription. They constitute, as it were, the negative element thereof, without which the positive elements have no force or effect and round which the latter revolve. Thus, if an owner interrupts a possession — causes it to be non-continuous — that shows that he does not acquiesce therein. Open and notorious possession is necessary so as to convey knowledge, and give the owner an opportunity to protect his right — to determine whether he wants to acquiesce or not. It has often been stated that open and notorious possession gives rise to a presumption of knowledge. Kinney, Irrigation, 2nd Ed., p. 1879; 67 C.J. 949, 950. And the rule, generally speaking, doubtless is sound. Still, circumstances should have a bearing. A man who irrigated a garden which was situated so that it could not be readily observed from a highway did not, in Britt v. Reed,
Here this difficulty is not encountered. Practically all of the water below Davenport Creek on the Little Bear is diverted by the plaintiffs into their private canals. Ever since the Kimball Decree in 1922 Nichols has used this water each and every year. In the presence of officials of the various plaintiff companies, he has asserted the right to and given them notice that he intended to continue to use it. Wilson testified that he, in the capacity of president of Hyrum Irrigation Company, went up to the Nichols property to check on the water; he further stated that they turned it off whenever they discovered that Nichols was using it.
Under the record there can be no doubt but what the plaintiffs knew as early as 1925 that Nichols claimed the right to use the water from Davenport Creek. There is equally no doubt but what the plaintiffs acquiesed in this use at times and at other times undertook to stop his use of this water. 3 His use of the water was open and notorious and under claim of right. The whole trial proceeded on the theory that Nichols, by using this water, was depriving the plaintiffs of it. It was upon this theory that plaintiffs asked for an injunction. After asserting throughout the trial in the lower court and in their brief on the appeal that Nichols had been using their water, plaintiffs cannot be now heard to say that the evidence did not show whose water Nichols had been taking.
Here all of the water is diverted from Little Bear by the plaintiffs. If only part of the water were diverted by the plaintiffs and rest were permitted to run on down Little Bear to numerous other appropriators many miles distant from Davenport Creek, we might have a different problem. The 4 writer doubts that the doctrine of adverse user should as a general rule be applied to diversions from the stream running in its natural channel. Water in the natural channel is fugitive water which has not yet been reduced to possession. Under the adjudicated *503
cases it is generally held that water which has not been diverted from the natural channel and reduced to possession is still public water for the appropriation has not been completed. SeeTanner v. Provo Reservoir Co.,
This question was not raised during the trial or on appeal. It was thrown out for the first time on petition for rehearing and is not fully developed by counsel. The majority of the court believes that, at least on the facts of this case, title by adverse user was proved by showing a diversion from a public stream. The case of Utah Power Light v. Richmond Irr. Co., supra, involved a physical lay out almost identical with the one involved in this case. We there upheld, without discussing this question, the decision of the lower court holding that title by adverse use was made out by showing a diversion of water from Pole Creek, a tributary to Little Bear. There has been several other cases in this jurisdiction in which the doctrine of adverse use was applied to diversions of water from a stream running in *504
its natural channel. See Spring Creek Irr. Co. v. Zollinger,
Petition for rehearing denied.
LARSON, McDONOUGH, and MOFFAT, JJ., concur.
Dissenting Opinion
For reasons given in my former opinion in this case I think a rehearing should be granted.
PRATT, J., on leave of absence. *505
