United States v. District Court of Fourth Judicial District Ex Rel. Utah County , 121 Utah 18 ( 1952 )

WADE, Justice.

Although the decision in this case sustained defendants’ contention that the court has jurisdiction to hear the appeal from the decision of the State Engineer, defendants’ petition for a rehearing. They contend that we too narrowly limited the issues which could be determined in such appeal.

First, they contend that we “presumptively” held that the Engineer could only approve or reject an application for a change of place of diversion for the full amount of water specified in the application and could not approve the application, but reduce the amount. We do not think that such construction or our opinion is justified for we did approve just such a reduction in this case though at the request of the plaintiff. If there is any doubt about this question, it should be made clear. We do not hold that the Engineer may not approve the application to change the diversion place of a part only of the water covered by the application. If there is reason to believe that only a part of the waters covered by the application may be diverted at the proposed new diversion place without interfering with the rights of others but there is no reason to believe that all of such waters could be so diverted, the Engineer in the first place and the court on appeal should approve the application to change the diversion place of only such amount of water as there is reason to believe may be changed without impairing the rights of others regardless of the amount specified in the application.

Defendants further contend that some language of the opinion should be reconsidered because it involves questions not before the court and not argued. That language in substance holds that the judgment of the district court on an appeal from the State Engineer’s decision only decided issues which the Engineer could have decided and such decision has no more force nor effect than the same decision would have had if made by the Engineer; that neither determines nor adjudicates the extent or priority of the claims of either the applicant or protestants, that each determine only whether to approve or reject the application based on whether or not it finds reason to believe that the application can be approved and the change to some extent effected without impairing the rights of others. Of course, in determining such question the claims of both the applicant and protestants must be considered but this does not require that such claims must be adjudicated. Some of such claims may have already been adjudicated and in making such decision this must be taken into consideration; others may be somewhat speculative and doubtful and such claims do not have to be adjudicated before reaching a decision, for the decision is based on law and facts which are required to only show reason to believe, and not on definite findings or conclusions of fact or law. The Engineer is an executive officer, he is not required to be trained in the law nor competent to pass on or adjudicate such legal questions.

The protestants, both in the hearing before the Engineer and by their pleading in the district court, raise highly technical legal questions, and on the appeal seek to adjudicate the extent of the right of the United States to use the water claimed by it and the priority as between it and the protestants to such use. They claim that their rights are prior to the rights of the predecessors of the United States, that they consented to the use of such waters by such predecessors only if used on the lands now covered by the waters of the Deer Creek Reservoir where they would receive the benefit of the return flow and that under the circumstances surrounding the construction of the Deer Creek Reservoir the United States abandoned its rights to the use of such waters and is estopped from now asserting the right to divert them at the new place of diversion. It is clear from their pleadings that the protestants now seek to adjudicate the rights of the United States to the use of these waters at ¡the new diversion place, and do not concede that the decision on whether to grant the application should be based merely upon whether the court finds reason to believe that such change will not impair their rights. Of course, if they make a strong enough case so that there is no reason to believe that the change can be made without impairing existing rights, it will be the duty of the court to deny the application, even though it does not adjudicate such rights.

Defendants correctly assert that they did not argue the questions discused in the language objected to. But the United States, contrary to our decision, argued that the so called appeal to the district court is a new and different action from the one determined by the Engineer, and that many issues which the Engineer refused, was not qualified, and had no jursdiction to determine will, under the pleadings in this case be adjudicated in the district court, and thus the United States will have been sued contrary to its sovereign immunity without consenting thereto. The defendants in their arguments did not answer this contention, apparently conceding that the issues before the district court would be greatly enlarged1 on the appeal. But we carefully considered these arguments of the United States and have grave doubts that if the issues may be so expanded on the appeal to the district court that such court can acquire jurisdiction to litigate such matters against the United States on account of its immunity as sovereign from being sued without its consent. We also recognize that this is not the court of last resort on that question but the federal courts have the final word thereon. We felt after studying the cases relied upon by the United States that it has misconstrued them to allow an enlargement of the issues on an appeal from the Engineer’s decision to the court. We had no doubt that if the issues on such an appeal are limited to the issues before the State Engineer, then Congress has required the Reclamation Department to submit to such an appeal. Without reaching this conclusion, there is no basis for our decision found in the opinion. To arrive at our decision, we had to rely upon the conclusion reached in the language objected to in our decision or decide other questions which we did not feel were necessary to decided in view of the conclusion reached by such language. So those questions were before us and necessary for our decision under the view we adopted. A modification of the language complained of in accordance with defendants’ petition would require us to determine the question of whether the United States is immune from a suit to determine its rights to the use of this water which we were not required to determine under the view we took.

The reasons supporting the conclusions objected to are sound. The term “appeal” indicates a re-examination by a higher tribunal of issues determined in the original trial, or at least issues which could have been so determined. It is a misnomer to call it an appeal where the appellate tribunal may hear and determine issues which the original could not have determined and where such determination has thfe effect of adjudicating such issues which could not be adjudicated by the decision of the original officer or tribunal. We know of no case of an appeal from the decision of an executive board or officer where the appellate tribunal adjudicates new issues not within the jurisdiction of the original tribunal to determine.

It is clear that the Engineer does not adjudicate the rights of the protestants or the applicant to the use of the waters in question, nor the rights which the applicant may obtain under the application. In re Application 7600 to Appropriate 30 Second Feet of Water, 63 Utah 311, 225 P. 605; Eardley v. Terry, 94 Utah 367, 77 P. 2d 362; Tanner v. Bacon, 103 U. S. 494, 136 P. 2d 957; Whitmore v. Murray City, 107 Utah 445, 154 P. 2d 748; Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 289 P. 116; Lehi Irrigation Co. v. Jones, 115 Utah 136, 202 P. 2d 892. A number of these cases hold that on the appeal to the district court its decision also does not have such effect but differs only from the Engineer’s decision in that it is the decision on an appeal and a further step to a final decision. Eardley v. Terry, supra, In re Application 7600, supra. These cases discuss whether the district court on an appeal can adjudicate the extent of the right which the applicant will acquire when it completes its proposed procedure thereunder. But Whitmore v. Murray City, supra, held that the Engineer’s decision was not an adjudication against a person who could have but failed to protest an application to change the place of diversion, and even though the change was allowed the person making the change acquired no right to interefer with an existing right of a prior applicant. Since there was no protest and no appeal to the district court, we did not determine the effect of the decision of such court.

If we are correct in our conclusion that the district court on an appeal from the Engineer’s decision only decides issues which the Engineer could have decided and that it does not adjudicate any rights except those on which the Engineer’s decision is final unless it is set aside, then the district court on this appeal cannot adjudicate the extent or priority of the right of the United States to the use of this water. The statute makes no provision for the determination of the priorities of the applicant and the protestants or the extent of their rights. It merely requires, an approval or rejection of the application and, if approved, authorizes the applicant to proceed with his proposed work and forbids him to proceed if rejected. See Sec. 100-3-10, U. C. A. 1943. It leaves the adjudication of the rights which the applicant may have or may acquire under the application, and the rights of the protestants, to the courts in another kind of a proceeding and not to the Engineer who is merely an executive officer. Neither the decision of the Engineer nor of the court on an appeal therefrom are based on a determination of the facts or the law applicable thereto but the application must be approved in both cases if the tribunal concludes that there is reason to believe that no existing right will thereby be impaired. See cases above cited to that effect. Petition denied.

McDONOUGH and HENRIOD, JJ., concur.