Watson, State Engineer v. Deseret Irrigation Co. , 110 Utah 78 ( 1946 )

I agree with the prevailing opinion that the court properly allowed Sevier to amend its pleadings and reopen its case. The rule on when amendments may be made is correctly stated inHartford Accident Indemnity Co. v. Clegg, 103 Utah 414,135 P.2d 919.

I agree that the finding of the trial court that the waters of the Piute Reservoir were held at the 76 foot contour at the express orders and direction of Piute, because water impounded above the 76 foot contour would flood private lands, is supported by a preponderance of the evidence. I agree 3 that the waters which were released at the order of Piute which it had the capacity to store in its reservoir were waters which were allocated to Piute under the decree, but that Piute was not entitled to credit for such waters as a part of the first priority of Sevier Bridge Reservoir for the following year because it was, under the contract, entitled to such credit only to such waters as should be released by the River Commissioners pursuant to the provisions of Section 2, subdivision (a) of the contract, for the purpose of transferring from Piute to Sevier before the irrigation season commenced, the waters which the commissioners estimated Sevier would be entitled to for such year. This water clearly does not come under that provision of the contract and therefore Piute was not entitled to credit out of Sevier's first priority for the following year.

I agree with the interpretation placed thereon by Mr. Justice WOLFE, on the word or in the provision in the contract reading

"Whether from excessive release of water from Piute Reservoir,or from accretions to the river below Piute Reservoir exceeding the amount for which allowance has been made."

I also agree that Piute was not entitled to credit against Sevier's first priority for the following year for the other waters involved in this action, on the following grounds in addition to those stated in the prevailing opinion and those stated by Mr. Justice WOLFE. Piute was not only limited in its right to claim such credit against Sevier's first priority for the following year, to waters released by the river commissioners pursuant to Section 2, subdivision (a) as pointed out above but also it was limited to and only had the right to claim credit for waters which were allocated to it or to which it had the right to store under the decree. In order to determine what waters Piute was entitled to credit out of Sevier's first priority for the following year we must determine what waters were allocated to Piute under the decree. The decree contains the following provisions:

"As between the owners of the Piute Reservoir and the owners of the Sevier Bridge Reservoir it is hereby ordered, adjudged and decreed that all of the waters of the Sevier River yielded above the Sevier Bridge Dam from all and every source whatever,available for storage or use under their or any of their saidwater filings between October 1st of any year and October 1st ofthe succeeding year, the following priorities and allocations of amounts shall govern:

"FIRST:

"Sevier Bridge Reservoir to receive 89,280 acre feet:

"SECOND:

"Piute Reservoir to receive 40,000 acre feet;

"THIRD:

"After the first and second above priorities and amounts have been satisfied, then of the next 32,000 acre feet or any part thereof available, 75% shall be allocated to Sevier Bridge Reservoir, and 25% to the Piute Reservoir;

"FOURTH:

"Sevier Bridge Reservoir shall receive all or any part of the next 13,720 acre feet available;

"FIFTH:

"Thereafter, of the next 75,000 acre feet, or any part thereof available, 75% shall be allocated to Sevier Bridge Reservoir and 25% to Piute Reservoir;

"SIXTH:

"All other or further water available shall be allocated 85% to Sevier Bridge Reservoir and 15% to Piute Reservoir." (Emphasis ours.)

These provisions of the decree cover not only the storage waters but also all waters yielded above the Sevier Bridge Reservoir either for storage or use, under any and all of the filings of the two reservoirs for a period commencing on October 1st, of one year to October 1st of the succeeding year. The contract on the other hand deals only with storage waters.

The Piute Reservoir capacity is 84,810 acre feet at the 80 foot contour level and 74,010 acre feet at the 76 foot contour level. The Sevier Bridge Reservoir will impound as much as 235,960 acre feet. If both reservoirs were empty at the beginning of a year and each stored all of the water allocated to it under the decree until its reservoir was filled it would take all of the water allocated to the Piute Reservoir under the first five classifications of the decree and about 7,000 acre feet under the sixth classification thereof before its reservoir would be filled to the 76 foot contour level, at which time the Sevier Bridge Reservoir would lack about 10,000 acre feet of being full, but it would be more than filled before the Piute Reservoir would reach the 80 foot contour level.

Prior to the making of this decree the storage rights of each of these parties had two natural limitations: First, neither had acquired nor could acquire the right to store any water beyond the capacity of its storage facilities, and: Second, neither had or could acquire any right to store any water which rose below its dam and for that reason could not be stored in its reservoir. Thus, under the first proposition, Piute did not acquire any right to store any water in its reservoir beyond the quantity of water required to fill the same and maintain it full to the end of the season. Any water which ran by its dam at a time when the reservoir was full, and which it could not otherwise use at that time, was water to which it did not acquire any right to store because it did not have the capacity to place such water to a beneficial use. The same is true of waters which arose below its dam. Such water it could not impound in its reservoir and therefore could not store it and thus could not acquire the right to store such water. Thus if it retained and stored in a given year all the water yielded above its dam which by natural flow could be diverted into its reservoir and therein retained and stored it would have the full amount of water which it could acquire the right to store in such reservoir during such year. Of course, it could and no doubt did acquire the right to use waters which it diverted below the dam and used for irrigation and other purposes by direct flow.

Such being the limitations of the rights of the parties prior to the adjudication, the decree must be read and interpreted in the light thereof. In making this decree the court was adjudicating the rights of the parties as they then existed, it was not creating new rights nor transferring rights from one party to another. Nor did it purport to create or transfer any such rights. Nor was it required to determine rights or limitations thereto, about which there was no dispute. Without expressly so stating, it did recognize these natural limitations, and made its formula for dividing the waters of this river system as between Piute and Sevier subject to these natural limitations. Thus the quantity of water which was allocated to Piute under this decree was not only limited by the provisions of the formula for the division of these waters but was also limited by these natural limitations as much as though the decree had expressly so provided.

Neither does the contract purport to or have the effect of making any change in the rights of these parties to the storage of the waters of this river. It simply recognized the rights of these parties as determined by the decree. Thus under the decree Piute had no right to storage waters beyond the capacity of its reservoir, and only had the right to store such waters as were yielded above its dam. The contract did not change these limitations on its rights to storage waters but simply dealt with such rights to storage waters as was allocated to it under the decree. The changes that it made was to authorize the River Commissioner to commence turning the water down from the Piute Reservoir to the Sevier Reservoir on January 1st, instead of waiting until April 1st, in order to save the water that would be lost in transmission if held to the later date, and in case in so doing too much water was turned down so that Piute did not get its share of the storage waters in accordance with the decree, Piute was authorized to retain out of Sevier first priority for the next year a similar quantity of water as it failed to get the previous year. But Piute was not thereby entitled to any credit the following year for any water which it could not have stored in its reservoir the previous year, either on account of lack of capacity of its reservoir or on account of the failure of nature to yield sufficient water above its dam. This is true even though under the formula for dividing the water set out in the decree it would have been entitled to more storage water for that year than it actually did store.