Bacon, State Engineer v. Plain City Irr. Co. , 87 Utah 564 ( 1935 )

I concur. Assessments, according to the amendment contained in chapter 18, Laws of Utah 1931, require that the salary and expenses of the commissioner "shall be borne pro rata by the users of water * * * based on established rights of each water user." If the assessments are made according to established rights, they will necessarily be "according to some standard which approximates a proportion according to service rendered and benefits received." Bacon v. Gunnison Fayette Canal Co., supra. Therefore, the assessments even under the 1925 law which did not contain the phrase about "established rights" should be based nevertheless on established rights. The difficulty is in determining what are the "established rights." As stated in the prevailing opinion, if all the rights are on the same level, then the assessments may be made pro rata on the basis of the decreed rights, but if there are primary and secondary rights and if, as the water falls away, some of the rights may call for the full amount given by the decree before the others may obtain their full allotment, then the established right or the right as worked out in practice is not necessarily completely reflected by the decreed right. For instance, if A. is entitled to 10 second feet and B. is entitled to 10 second feet, but A. is entitled to the preference before B. from the total water supply, and the water falls off so that B. only gets five second feet, the established rights relatively of A. and B. are not equal. If the water supply is sufficient to give both 10 second feet over a period of years, it may be empirically determined that their established rights are equal. They have been "established" as equal through experience over that period of years. But if the supply of water in the stream should so vary that in some years A. should have 200 acre feet and B. less than 200 acre feet, upon A.'s preferential 10 second feet and B.'s 10 second feet postponed to A., then experience would show that B.'s established right relative to A. was not equal. The illustration might be clearer if we supposed a case where A. and B. both had the right to take 20 tons of wild hay from a field yearly, but A. had the right to take 15 tons of his first before B. got any. If, during a period of years, there was enough for both, experience would show that the content of the paper right was the same as the "established" right as found by experience. But if, during half the time, B. was, by the vagaries of nature, denied a part of his 20 tons, an assessment levied against both for the labor of harvesting on the basis that each received 20 tons would be unjust. If it were necessary to assess before the harvesting season or before the hay appeared above the ground, the average of what each got over a number of years would most likely comport with the "service rendered and benefit received."

It is for these reasons that I concur in the prevailing opinion to the effect that the state engineer should take into account, if possible, the average over a series of years of what A. and B. have obtained in order empirically to arrive at what their established rights are relative to each other, provided that the decree does not put them on exactly the same plane. Where the decree puts them on the same plane so that the actual amount that each receives during any one year is decreased proportionately when there is a falling off of the water supply, the decreed rights would suffice as a basis for apportionment of assessments; but otherwise where the decreed rights are legally not equal. In that case, one must determine what their established rights are relative to each other through experience.