No. 3691 | Utah | Nov 19, 1921
The respondents, plaintiffs below, protested in the state engineer’s office two applications filed in that office by -the appellants, defendants below, to appropriate what is claimed to be the unappropriated waters of two springs in Pole Canyon, Juab county, this state.
One of the applications was for irrigation, and one for power purposes.’ The applications were numbered, respectively, 6386 and 6385. The engineer denied the protest and approved the applications. On the application for irrigation, to wit, No. 6386, the engineer, in granting the application,
^The respondents, protestants before the engineer, being dissatisfied with the order of the engineer, bring this action and seek a decree adjudging them to be the owners of the waters sought to be appropriated and restraining appellants from asserting any claim or right to such water.
The orders approving the applications were made by the engineer on January 22, 1917. This suit was begun on March 21, 1917, Comp. Laws Utah 1917, § 3459, the law in force at that time, provides:
“Any applicant or protestant who is dissatisfied with, the action of the state engineer may bring an action in the district court of the county in which the point of diversion of the water proposed to be appropriated is situated, for the purpose of adjudicating the questions involved. Such action must be brought within sixty days of notice of the action of the state engineer, and, if not brought within that time, the engineer shall proceed in accordance with the action taken thereon by him. But if such action be brought within said time, notice thereof shall be filed with the state engineer, and thereafter he shall take no further action until the questions involved are determined by the courts. Upon the determination of the case by the courts, the clerk of the district court in which the decree is filed shall immediately file a certified copy thereof with the state engineer, and thereupon he shall proceed in accordance with such decree. * * *”
In tbe complaint respondents allege ownership of certain lands described; also, that they are the owners, and have been for more than 30 years past, and are entitled to the use of and have constantly used for beneficial purposes, all the waters of said Pole Canyon, during that time. It is then alleged that appellants made applications to the state engineer’s office for the right to appropriate such water ,and that the engineer granted such applications; that the rulings of the engineer in granting the applications áre erroneous and “injurious to the quiet right and possession of the plaintiffs herein.” It is further alleged that this action is brought as an appeal from the orders and rulings of the engineer, and
It appears that the waters in controversy are found in a deep canyon or ravine extending back practically two miles into the mountains near the summit of Mt. Nebo in Jnab county. There are numerous springs found in this canyon, including the two in controversy. The waters from the various springs or bogs gather in the drain or outlet of the canyon and are sufficient in volume to reach respondents’ lands from about April 15th to June 15th of each year. It appears from the testimony of one of the respondents that he had known this canyon for about 37 years’; that the waters from the canyon came from the melting snows in the spring and early summer and from water running or seeping from these various springs into the defile or gorge leading from the canyon. The months during which the waters are sufficient in volume to reach respondents’ lands vary somewhat, owing to the season.. The length of time during the year that the. water will run in sufficient quantity to reach i*espondents ’ lands is controlled largely .by the fall of snow in the mountains. In a season when there has been a heavy snowfall in the winter months, the waters will continue to run in sufficient volume to reach the lands of respondents as late as July 4th. During the months of August and September, after a rain, the waters will frequently flow down in sufficient amount to reach their lands.
The court found the fact of appellants having applied to the state engineer to appropriate this water; also, that respondents protested those applications, and that after a hearing the engineer granted to appellants the right to appropriate fiv,e second feet of water for power and irrigation purposes to be used from the 1st day of January to the 31st day of December of each year. The court further found that respondents and their predecessors in interest, as early as 1884, appropriated all the waters of said Pole Canyon, including the waters of Pole Spring and Coal Spring, being the springs in controversy, and at all times had put the waters to a beneficial use: The court also found |hat at the
As conclusions of law the court determined that respondents are entitled to the use of all of the waters in said Pole Canyon, including the waters of the two springs in controversy; that appellants are not, and neither of -them is, entitled to construct irrigation works for the purpose of using any of the waters of Pole Canyon whether coming from either or both of the springs in question or from elsewhere; that appellants are not, and neither of them is, entitled to divert any waters for any purpose from said canyon. The court also concluded that the state engineer should be directed and commanded by the court to revoke and cancel the permits issued by him to appellants authorizing either or both of them to construct waterworks and to divert or appropriate water from said Pole Canyon.
It is the contention and argument of counsel for appellants that the testimony does not support either the findings of fact or the conclusions of law of the court.
There is no dispute in the record that respondents have for more than 30 years appropriated and used for beneficial purposes all the waters flowing from this canyon, namely, for irrigation and culinary purposes. It seems to be the theory. of respondents that the mere fact of the state engineer having granted to appellants a right to the use of five second feet of unappropriated waters in said canyon will in some way interfere with or disturb the acknowledged rights of the respondents. As indicated above, there is no dispute in the testimony (in fact there was no evidence offered by appellants) that the respondents have continuously asserted their rights and have .used all the waters flowing from this canyon during each and every year for beneficial purposes.
It is strenuously argued by counsel for respondents that the testimony establishes beyond controversy that there are no waters running to waste in the canyon, and that any effort upon the part of appellants to conserve or gather together these waters would of necessity interfere with the rights of respondents.
Whether any water can be developed or any means devised by which these waters can be conserved or can be put to a beneficial use can be determined only by the expenditure of money in making the experiment. It would seem from the testimony in the record that such an effort, must ultimately
It appears without dispute that, so far as irrigation or culinary purposes are concerned, no use is made of the waters of this canyon at any time except during the months from about April 15th to June 15th, or, at least, about July 4th. During the remainder of the year, so far as the record indicates, the respondents receive no benefits from and have made no attempt to utilize these waters.
The cause is therefore remanded to the district court of Juab county, with directions to modify its findings of fact, conclusions of law, and decree in accordance with the views herein expressed, but to retain jurisdiction of the case, and if it should be made to appear at any time that appellants in the effort to develop and conserve the waters of that canyon are in any way interfering with the rights of respondents, make such order as will protect those rights. Neither party will be allowed costs on this appeal.