Delta Canal Co. v. Frank Vincent Family Ranch, LC

AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 69IN THE
SUPREME COURT OF THE STATE OF UTAH
DELTA CANAL CO., MELVILLE IRRIGATION CO., ABRAHAM
IRRIGATION CO., DESERET IRRIGATION CO.,
and CENTRAL UTAH WATER CO.,
Plaintiffs and Appellants,
v.
FRANK VINCENT FAMILY RANCH, LC,
Defendant and Appellee.
No. 20120470
Filed November 19, 2013
Fourth District, Fillmore Dep’t
The Honorable James M. Brady
No. 080700087
Attorneys:
John H. Mabey Jr., David C. Wright, Salt Lake City,
Richard Waddingham, Delta, for appellants
Edwin C. Barnes, Steven E. Clyde, Robert D. Andreasen,
Jonathan S. Clyde, Salt Lake City, for appellee
John E. Swallow, Att’y Gen., Norman K. Johnson,
L. Ward Wagstaff, Julie I. Valdes, for amicus curiae
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE PARRISH, and JUSTICE LEE joined.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Appellants Delta Canal Company, Melville Irrigation
Company, Abraham Irrigation Company, Deseret Irrigation
Company, and Central Utah Water Company (collectively, Irrigation
Companies) and Appellee Frank Vincent Family Ranch, LC
(Vincent) are water-rights holders on the Sevier River system. The
Irrigation Companies claim that Vincent’s water right has been
partially forfeited and partially abandoned. The district court
granted summary judgment to Vincent. We reverse and remand.
DELTA v. VINCENT
Opinion of the Court
BACKGROUND
¶2 The Irrigation Companies are nonprofit Utah corporations
that distribute water to their shareholders for irrigation of
agricultural land in Millard County. They filed a complaint in
district court alleging that Vincent’s water right had been partially
forfeited and partially abandoned.
¶3 The water right in question was awarded to the Samuel
McIntyre Investment Company (McIntyre) in 1936 during a general
adjudication of the Sevier River system.1 Leading up to the general
adjudication, the state engineer catalogued all water usage in the
Sevier River system and prepared a proposed determination of
water rights. The state engineer proposed to award McIntyre 5,000
acre feet of water annually to irrigate 1,051.5 acres of land.
¶4 The district court heard and addressed objections to the
proposed determination and then issued a final decree, referred to
as the “Cox Decree.” The Cox Decree awarded McIntyre twenty-two
cubic feet of water per second from March 1 through October 1 of
each year. This water included a storage component from April 16
to October 1, permitting McIntyre to store 90% of its allocation in the
Sevier Bridge Reservoir for future use.
¶5 Vincent purchased this water right in 1998, when it also
purchased the McIntyre farm. Vincent has used the farm and water
right to grow crops, such as corn, hay, and alfalfa, and to run a
commercial bird-hunting operation.
¶6 The Irrigation Companies allege that during the twenty-
year limitations period preceding the filing of their complaint in
2008,2 Vincent and its predecessor forfeited and abandoned a portion
of the water right. They allege that from 1988 to 1998, McIntyre
irrigated only 830 of its 1,051.5 acres, and that after 1998, Vincent
cultivated fewer than 900 of the 1,051.5 acres.
¶7 Vincent contends that it was unable to cultivate all 1,051.5
acres because in times of water shortages, the Sevier River
Commissioner reduced its diversion right. Vincent further argues
1
See Green River Canal Co. v. Olds, 2004 UT 106, ¶¶ 3–7, 110 P.3d
666, for an overview of the general adjudication process.
2
When the Irrigation Companies filed their complaint on May 1,
2008, Utah Code section 73-1-4(3)(c)(i) provided that forfeiture
actions must be “commenced within 15 years from the end of the
latest period of nonuse of at least five years.” Amendments to the
statute took effect on May 5, 2008. See 2008 Utah Laws 2559–60.
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that it should not be faulted for failing to use water between March
1 and April 15 because water could not be beneficially used while
the ground was unprepared and sometimes frozen, and there was
no storage right during this period. Vincent also defends on the
grounds that it irrigated many acres of natural habitat for
commercial bird hunting.
¶8 The parties also disagree on the purely legal question of
whether partial forfeiture and partial abandonment were available
in Utah before 2002. In 2002, the legislature amended Utah Code
section 73-1-4 (the Forfeiture Statute) to clarify that partial forfeiture
was an available remedy. See 2002 Utah Laws 120. As amended, the
Forfeiture Statute provided that “the water right or the unused portion
of that water right” could be forfeited. UTAH CODE § 73-1-4(3)(a)
(subsequent to 2002 amendments) (emphasis added). Before the
amendment, the code stated only that “the water right” could be
forfeited. UTAH CODE § 73-1-4(1)(a) (prior to 2002 amendments).
¶9 The district court held that Utah law did not provide for
partial forfeiture or partial abandonment before 2002, and that
Vincent was protected from partial forfeiture and partial
abandonment after 2002 by an exception located in Utah Code
section 73-1-4(3)(f)(i) (subsequent to 2002 amendments). See 2002
Utah Laws 120. This exception stated that “[t]he provisions of this
section shall not apply . . . to those periods of time when a surface
water source fails to yield sufficient water to satisfy the water right,
or when groundwater is not available because of a sustained
drought.” The court held that because Vincent did not receive an
uninterrupted flow of twenty-two cubic feet of water per second
during any years between 2002 and the filing of the complaint, the
Irrigation Companies were “precluded from claiming either a partial
forfeiture, or a partial abandonment.” The court granted summary
judgment to Vincent, and the Irrigation Companies appealed. We
have jurisdiction under Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶10 “We review a district court’s grant of summary judgment
for correctness.” Basic Research, LLC v. Admiral Ins. Co., 2013 UT 6,
¶ 5, 297 P.3d 578 (internal quotation marks omitted).
ANALYSIS
¶11 We begin by examining the pre-2002 Forfeiture Statute in
conjunction with Utah Code section 73-1-3 (the Beneficial Use
Statute). We determine that the pre-2002 Forfeiture Statute
unambiguously permitted partial forfeiture. We next conclude that
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DELTA v. VINCENT
Opinion of the Court
the exception located in Utah Code section 73-1-4(3)(f)(i) (subsequent
to 2002 amendments) is a codification of the physical-causes
exception—not a rule that forfeiture can never occur when a water
right is not fully satisfied. We also clarify that abandonment is a
common-law cause of action that requires a showing of intent to
relinquish. Finally, we clarify the proper measure of Vincent’s water
right and address other issues likely to arise on remand.
I. PARTIAL FORFEITURE HAS ALWAYS BEEN AVAILABLE
IN UTAH BECAUSE IT IS INHERENT IN THE PRINCIPLE
OF BENEFICIAL USE
A. Partial Forfeiture in Our Case Law
¶12 The parties dispute whether partial forfeiture was available
in Utah before 2002. Vincent argues that it was not available, relying
in part on Eskelsen v. Town of Perry, 819 P.2d 770, 775 n.9 (Utah 1991),
where we stated in dicta that “[t]he question of partial forfeiture is
not addressed in our statutes and has never been directly before this
court. . . .” But closer investigation of our case law reveals that this
court has always assumed that partial forfeiture was an available
remedy.
¶13 In 1897, we stated,
The great weight of modern authority is to the effect
that when an appropriator permits part of the water
appropriated to run to waste, or fails to use a certain
portion of it for some beneficial use or purpose, he can
only hold that part of the water which has been actually
applied to a beneficial use, and his right is limited to the
quantity so used.
Becker v. Marble Creek Irrigation Co., 49 P. 892, 893 (Utah 1897)
(emphasis added). In 1943, we heard an appeal involving an
allegation of partial forfeiture of a water right. Rocky Ford Irrigation
Co. v. Kents Lake Reservoir Co., 135 P.2d 108 (Utah 1943). We declared
that “if there were a five year continuous period during which [the
appropriator] failed to use material amounts of available water, we
should hold that a forfeiture of at least part of its right has occurred by
virtue of this nonuse.” Id. at 112 (emphasis added). We then applied
this standard to the facts of the case and determined that no
forfeiture had occurred because the appropriator had fully used its
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water right in one relevant year and was protected by the “physical
causes” exception3 in other years. Id. at 111–13.
¶14 More recently, in Eskelsen, we noted that “all of the policy
reasons that support forfeiture as a general principle would be
furthered by, and hindered without, partial forfeiture.” 819 P.2d at
775 n.9. Finally, in 1997, we said that “[t]he extent of anyone’s right
to use water . . . is limited to that amount which can be put to
beneficial use. Thus, the nonuse of water for five years by an
appropriator works a loss of the right to the unused water. . . .” Platt v.
Town of Torrey, 949 P.2d 325, 331–32 (Utah 1997) (emphasis added)
(citation omitted).
¶15 These cases, which span a century, show that this court
recognized and applied the doctrine of partial forfeiture long before
2002. Although we have not previously linked the doctrine of partial
forfeiture to statutory language, we have always acted on the
assumption that partial forfeiture was available. This appeal
presents us with the opportunity to situate the doctrine of partial
forfeiture within our statutes.
B. The Language of the Forfeiture Statute
¶16 “Our primary objective when interpreting statutes is to
give effect to the legislature’s intent.” State v. Harker, 2010 UT 56,
¶ 12, 240 P.3d 780 (internal quotation marks omitted). To discern
legislative intent, we begin by examining a statute’s plain language
and construing it “in harmony with other statutes in the same
chapter and related chapters.” Id. (internal quotation marks omitted).
“When viewing the act as a whole does not eliminate duplicative yet
plausible meanings, the statute is ambiguous, and we may resort to
extrinsic interpretive tools to resolve the ambiguity.” R & R Indus.
Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass'n, 2008 UT 80, ¶ 26, 199
P.3d 917 (internal quotation marks omitted).
3
We explained the physical causes exception as follows:
“[F]orfeiture will not operate in those cases where the failure to use
is the result of physical causes beyond the control of the
appropriator such as floods which destroy his dams and ditches,
dr[o]ughts, etc., where the appropriator is ready and willing to
divert the water when it is naturally available.” Rocky Ford, 135 P.2d
at 111. See infra ¶¶ 30–32.
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DELTA v. VINCENT
Opinion of the Court
¶17 Before 2002, the Forfeiture Statute provided,4
When an appropriator or the appropriator’s successor
in interest abandons or ceases to use water for a period
of five years, the water right ceases and the water
reverts to the public, unless, before the expiration of the
five-year period, the appropriator or the appropriator’s
successor in interest files a verified application for an
extension of time with the state engineer.
UTAH CODE § 73-1-4(1)(a) (prior to 2002 amendments). The statute
referred to “water” and “the water right” without specifying
whether those terms referred to divisible amounts of an
appropriator’s entitlement. The statute could be reasonably
interpreted to mean that when an appropriator ceases to use any
portion of a water right, that portion of the water right ceases. But it
could also be reasonably interpreted to mean that only when an
appropriator ceases entirely to use water from a previous
appropriation does that right cease. Thus, when viewed in isolation,
the pre-2002 Forfeiture Statute is ambiguous.
¶18 But we do not interpret statutes in isolation; we take
interpretive guidance from related statutes. See Harker, 2010 UT 56,
¶ 12. Here, we seek insight into the legislature’s purpose for the
Forfeiture Statute in the neighboring Beneficial Use Statute, which
provides that “[b]eneficial use shall be the basis, the measure and the
limit of all rights to the use of water in this state.” UTAH CODE § 73-1-
3; see Butler v. Pinecrest Pipeline Operating Co., 2004 UT 67, ¶ 31, 98
P.3d 1 (reading the Forfeiture Statute “in conjunction with” the
Beneficial Use Statute). As we explain below, the Beneficial Use
Statute erases all ambiguity from the Forfeiture Statute and requires
us to conclude that the pre-2002 Forfeiture Statute permitted partial
forfeiture.
4
The statute was also amended in 1996. Prior to 1996, it read:
When an appropriator or his successor in interest
abandons or ceases to use water for a period of five
years, the right ceases, unless, before the expiration of
the five-year period, the appropriator or his successor
in interest files a verified application for an extension
of time with the state engineer.
UTAH CODE § 73-1-4(1)(a) (prior to 1996 amendments). Because the
differences between the pre-1996 version and the post-1996 version
of the statute do not affect our analysis, we will for simplicity’s sake
address only the post-1996 version.
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C. Beneficial Use
¶19 In Utah and other arid western states, “a drop of water is
a drop of gold.” Carbon Canal Co. v. Sanpete Water Users Ass'n, 425
P.2d 405, 407 (Utah 1967). Western state governments are “vitally
interested in seeing that none of the [state’s] waters are allowed to
run to waste or go without being applied to a beneficial use.”
Eskelsen, 819 P.2d at 775. In all western states, the concept of
“beneficial use” has been codified, and in many states, including
Utah, it has been enshrined in the state constitution. UTAH CONST.
art. XVII, § 1 (“All existing rights to the use of any of the waters in
this State for any useful or beneficial purpose, are hereby recognized
and confirmed.”) (no change since 1896); UTAH CODE § 73-1-3
(“Beneficial use shall be the basis, the measure and the limit of all
rights to the use of water in this State.”) (no change since 1903 except
for renumbering, see 1903 Utah Laws 101); Janet C. Neuman,
Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency
in Western Water Use, 28 ENVTL. L. 919, 923 (1998) (“The water codes
of all of the western states and some state constitutions include the
term ‘beneficial use.’”).
¶20 In Utah, the beneficial use principle existed at common law
prior to its codification. We held in Sigurd City v. State, 142 P.2d 154,
157 (Utah 1943) that water rights acquired before the beneficial use
principle was codified were nonetheless subject to the beneficial use
requirement because beneficial use “has always been the basis of the
right to appropriate and use waters in this state.” Indeed, even prior
to statehood, the leaders of the Church of Jesus Christ of Latter-day
Saints “conditioned the privilege of owning property, including
water, on the productive, non-speculative use of the property.” 4
WATER AND WATER RIGHTS, Part XI.B, Utah, § III(F) (Amy K. Kelley
ed., 3rd ed. 2013).
¶21 “[B]eneficial use” is not statutorily defined in many
western states, including Utah, and even in states with statutory
definitions, those definitions are often framed in general terms that
require further explanation. See, e.g., N.D. CENT. CODE § 61-04-01.1
(2013) (“‘Beneficial use’ means a use of water for a purpose
consistent with the best interests of the people of the state.”). Thus,
the concept of beneficial use has developed largely in common-law
fashion, with state courts borrowing heavily from one another’s
opinions. Neuman, supra ¶ 19, at 925. As the Ninth Circuit observed,
“on the point of what is beneficial use the law is general and without
significant dissent. . . . [U]nless it is shown that a state applies a
special rule of law on a relevant point, it is proper to apply general
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DELTA v. VINCENT
Opinion of the Court
law in defining beneficial use.” United States v. Alpine Land &
Reservoir Co., 697 F.2d 851, 854 (9th Cir. 1983) (citation omitted)
(internal quotation marks omitted).
¶22 In western water law generally, “beneficial use has two
different components: the type of use and the amount of use.”
Neuman, supra ¶ 19, at 926. Over time, the types of use considered
to be beneficial have expanded to encompass not only economically
beneficial uses, but also uses that promote conservation, recreation,
and other values deemed to be socially desirable. 1 WATER AND
WATER RIGHTS, supra ¶ 20, at § 12.02(c)(2). In some states, legislatures
have identified uses that are per se beneficial or non-beneficial. E.g.
MONT. CODE ANN. § 85-2-102(4) (listing uses deemed to be
beneficial); OKLA. STAT. tit. 27, § 7.6 (“No Oklahoma water from any
source shall be used in connection with the transportation,
maintenance or operation of a coal slurry pipeline within or through
the State of Oklahoma.”). Some state legislatures have also specified
priorities to govern usage in times of shortages. E.g. ARIZ. REV. STAT.
ANN. § 45-157 (prioritizing water uses based on “[t]he relative values
to the public”).5 Courts have also identified beneficial and non-
beneficial uses of water. E.g. Neubert v. Yakima-Tieton Irrigation Dist.,
814 P.2d 199, 204 (Wash. 1991)(en banc) (holding that using water to
protect crops from frost is beneficial); Burlington Ditch Reservoir &
Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645, 663
(Colo. 2011).
¶23 The touchstone of the second requirement of beneficial use
is reasonableness: the amount of water used must be reasonable.
Usage of water in accordance with “the general custom of the
locality” is usually reasonable, “so long as the custom does not
involve unnecessary waste.” Tulare Irrigation Dist. v. Lindsay-
Strathmore Irrigation Dist., 45 P.2d 972, 997 (Cal. 1935). An
appropriator who diverts water in excess of the appropriator’s
“actual requirements and allow[s] the excess to go to waste
acquire[s] no right to the excess.” State Dep’t of Ecology v. Grimes, 852
P.2d 1044, 1051 (Wash. 1993)(en banc). The same is true for water
diverted in excess of reasonable requirements and used inefficiently.
“A particular use must not only be of benefit to the appropriator, but
it must also be a reasonable and economical use of the water in view
of other present and future demands upon the source of supply.” Id.
5
Utah repealed its list of water use priorities in 2009. See 2009
Utah Laws 1343.
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¶24 In Utah, as in many other states, “our statutory and
decisional law have been fashioned in recognition of the desirability
and of the necessity of insuring . . . the most continuous beneficial
use of all available water with as little waste as possible.” Green River
Canal Co. v. Thayn, 2003 UT 50, ¶ 34, 84 P.3d 1134 (internal quotation
marks omitted); see also Little Walla Irrigation Union v. Finis Irrigation
Co., 124 P. 666, 668 modified on reh’g sub nom. Little Walla Walla
Irrigation Union v. Finis Irrigation Co., 125 P. 270 (Or. 1912) (“It is the
policy of the law that the best [irrigation] methods should be used
and no person allowed more water than is necessary.”). This court
declared over fifty years ago that “[w]asteful methods [of irrigation]
must be discontinued.” In re Water Rights of Escalante Valley Drainage
Area, 348 P.2d 679, 682 (Utah 1960). Since then, Utah’s population
has trebled, making the need for water conservation even more
pressing. See Laura Summers, Utah Foundation, Research Brief: The
Impacts of Utah’s Population Growth (Oct. 9, 2008),
http://www.utahfoundation.org/reports/?page_id=270 (providing
a population graph and discussing increasing demand for water).
Thus, all water users must “pay careful attention to the manner of
use,” and courts, when appropriate, should exercise their “power to
order improved methods of conveying, measuring and diverting
water so as to assure the greatest possible use of the natural
resource.” In re Water Rights of Escalante Valley Drainage Area, 348
P.2d at 682; see Grimes, 852 P.2d at 1051–54 (holding that an
appropriator’s water right was properly limited to allow only a one-
fourth conveyance loss, rather than the user’s previous “one-half to
two-thirds” conveyance loss).
¶25 These requirements of beneficial use—beneficial purpose
and reasonable amount—are ongoing requirements. Eskelsen, 819
P.2d at 775 (“An appropriative water right depends on beneficial use
for its continued validity.”); State v. Hagerman Water Right Owners,
Inc., 947 P.2d 400, 408 (Idaho 1997) (holding that applying water to
beneficial use is “a continuing obligation”); Neuman, supra ¶ 19, at
932 (“The case law is thus consistent, both over time and throughout
the West, in applying actual beneficial use as an ongoing
requirement in maintaining appropriative water rights.”). If an
appropriator ceases to beneficially use a water right, the wasted or
unused water is made available to other appropriators. In Utah, the
process for making such water available to other appropriators is
governed by the Forfeiture Statute.
D. Beneficial Use and the Forfeiture Statute
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Opinion of the Court
¶26 Vincent would have us hold that under the Forfeiture
Statute, a water right can be fully maintained through partial use.
This rule would be inconsistent with the concept of beneficial use.
See Hagerman, 947 P.2d at 407–08 (holding that the statutory
interpretation advanced by the party opposing partial forfeiture
would be inconsistent with the beneficial use policies underlying
Idaho’s forfeiture statute). As we explained in Eskelsen, the policy
underlying Utah water law is to prevent the state’s water from being
“allowed to run to waste or go without being applied to a beneficial
use for any great number of years.” 819 P.2d at 775–76 (internal
quotation marks omitted). This policy “would be furthered by, and
hindered without, partial forfeiture.” Id. at 775 n.9. Vincent’s rule
would effect the opposite result: appropriators would be able to
maintain their entire water rights while wasting or otherwise failing
to beneficially use material amounts of that water.
¶27 Under the principle that we interpret statutes in harmony
with neighboring provisions, Harker, 2010 UT 56, ¶ 12, we interpret
the Beneficial Use Statute and the Forfeiture Statute in harmony with
one another. If beneficial use is to be “the basis, the measure and the
limit” of water rights in Utah, as required by the Beneficial Use
Statute, then partial forfeiture must be available. We agree with all
the other western state courts that have addressed this question and
found that forfeiture and partial forfeiture are inherent in the very
concept of beneficial use. See, e.g., United States v. Alpine Land &
Reservoir Co., 27 F. Supp. 2d 1230, 1243 (D. Nev. 1998) (“Under the
established tenet that a beneficial use is the measure and limit of a
water right, when the necessity for the use of the water ceases to
exist or is reduced, the extent of the water right is limited to the
extent of the beneficial purpose which remains.”); Smith v. Hawkins,
52 P. 139, 140 (Cal. 1898) (“If plaintiffs could forfeit their entire right
of appropriation by nonuser, equally will they be held to forfeit less
than the whole by like failure.”); Hagerman, 947 P.2d at 407–08
(holding that partial forfeiture is available in Idaho and that a
contrary holding would be inconsistent with the principle of
beneficial use); In re Musselshell River Drainage Area, 840 P.2d 577, 579
(Mont. 1992) (“The controlling principle upon which water ‘rights’
in Montana are perfected and continue to possess legal validity is
that of beneficial use; water rights cease when the water is no longer
applied to a beneficial use.” (internal quotation marks omitted)); In
re Birdwood Irrigation Dist., 46 N.W.2d 884, 888 (Neb. 1951) (“We
conclude that the power to cancel the whole of an appropriation for
irrigation purposes for nonuser carries with it the right to cancel a
part.”).
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¶28 We hold that the only plausible reading of the Forfeiture
Statute, when viewed in conjunction with the Beneficial Use Statute,
is that a water right may be forfeited either in whole or in part.
Under pre-2002 versions of the Forfeiture Statute, a water right has
been partially forfeited if, during the statutory period, the
appropriator “failed to use material amounts of available water”
without securing an extension of time from the state engineer. Rocky
Ford, 135 P.2d at 112; UTAH CODE § 73-1-4(1)(a) (prior to 2002
amendments) (permitting an appropriator to file for an extension of
time). Accordingly, we reverse the district court’s grant of summary
judgment as to the pre-2002 partial forfeiture claim and remand for
the claim to be reconsidered in a manner consistent with this
opinion.
II. THE 2002 VERSION OF THE FORFEITURE STATUTE
PROVIDES FOR FORFEITURE OF AVAILABLE
WATER THAT IS NOT BENEFICIALLY USED
¶29 The Irrigation Companies also appeal the district court’s
interpretation of the following exemption in the post-2002 Forfeiture
Statute: “The provisions of this section shall not apply . . . to those
periods of time when a surface water source fails to yield sufficient
water to satisfy the water right, or when groundwater is not
available because of a sustained drought.” UTAH CODE § 73-1-
4(3)(f)(i) (2002). The district court interpreted this exemption to mean
that no forfeiture of any amount can occur during periods when a
water right is not fully satisfied. Although this interpretation is
reasonable when the text of the exemption is viewed in isolation, it
is unreasonable when the exemption is viewed in conjunction with
the Beneficial Use Statute.
¶30 Under the district court’s interpretation of the exemption,
a small deficit in available water could protect a water right from
forfeiture even if most of the water were actually available but not
put to beneficial use. This result is inconsistent with the Beneficial
Use Statute, under which the continuing validity of a water right
depends on its being used. See supra ¶¶ 19–25. Thus, we reject the
district court’s interpretation and hold that this exemption is a
codification the common-law physical-causes exception we applied
in Rocky Ford.
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Opinion of the Court
¶31 In Rocky Ford, we explained that
the courts have uniformly held that forfeiture will not
operate in those cases where the failure to use is the
result of physical causes beyond the control of the
appropriator such as floods which destroy his dams and
ditches, dr[o]ughts, etc., where the appropriator is
ready and willing to divert the water when it is
naturally available.
Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 135 P.2d 108, 111
(Utah 1943). We then applied the physical-causes exception, holding
that no forfeiture had occurred because the years of inadequate use
were punctuated by years in which “no water whatever was
available.” Id. There was no consecutive span of five years (the
statutory forfeiture period at the time) in which the defendant failed
to use material amounts of available water. Id. at 113. Therefore,
because of the physical-causes exception, the water right was not
forfeited in whole or in part. Id.
¶32 Utah Code section 73-1-4(3)(f)(i) (2002)6 codifies the
physical-causes exception, protecting appropriators from forfeiture
insofar as they beneficially use material amounts of available water.
Even during a shortage, if an appropriator fails to beneficially use
material amounts of available water, the amount of available but
unused water may be forfeited. The district court’s contrary view
would create a safe harbor for waste and non-use during times of
shortage, which is precisely when efficiency and conservation are
most imperative. We therefore reverse the grant of summary
judgment as to the post-2002 partial-forfeiture claim and remand for
the claim to be reconsidered in a manner consistent with this
opinion.
III. ABANDONMENT OF A WATER RIGHT IS A COMMON-
LAW CLAIM, NOT A STATUTORY CLAIM
¶33 The Irrigation Companies also allege that Vincent
abandoned part of its water right. The district court treated the
abandonment claim as a claim under the Forfeiture Statute, which
states that forfeiture occurs when an appropriator “abandons or
ceases to use” a water right. UTAH CODE § 73-1-4(3)(a) (2002)
(emphasis added.) The district court granted Vincent summary
judgment on the abandonment claim based on Utah Code section 73-
6
The current version of this exemption is located at Utah Code
section 73-1-4(2)(e)(iii).
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1-4(3)(f)(i) (subsequent to 2002 amendments)—the exemption that
we hold to be a codification of the physical-causes exception. See
supra ¶ 30. Summary judgment on that basis was improper for two
reasons. First, the district court erred in interpreting this exemption.
See supra ¶¶ 29–32. Second, abandonment of a water right is not a
statutory claim. Although a form of the word “abandon” has been
present in the Forfeiture Statute since it was originally promulgated
in 1903, our jurisprudence has treated abandonment as a common-
law claim, independent of the Forfeiture Statute.
¶34 In 1943, we observed,
Abandonment is a separate and distinct concept from
that of forfeiture. . . . While upon the one hand,
abandonment is the relinquishment of the right by the
owner with the intention to forsake and desert it,
forfeiture upon the other hand, is the involuntary or
forced loss of the right, caused by the failure of the
appropriator or owner to do or perform some act
required by the statute.
Wellsville E. Field Irrigation Co. v. Lindsay Land & Livestock Co., 137
P.2d 634, 643 (Utah 1943) (internal quotation marks omitted). A few
years later, we addressed the presence of the term “abandon” in the
Forfeiture Statute:
Although the statute uses the term “abandon or cease to
use water for a period of five years,” we have
recognized that abandonment is a separate and distinct
concept from that of forfeiture in that an abandonment
requires a definite intent to relinquish the right to use
and ownership of such water right and does not require
any particular period of time, but the forfeiture herein
provided for requires that the appropriator cease to use
the water for a period of five years before it is
complete. . . . The abandonment of a water right to the
public the same as the abandonment of any other
property or right requires that a prior appropriator
intentionally release or surrender such right to the
public. To thus lose a water right does not necessarily
depend on this statute nor require nonuse of such right
for any particular length of time.
Rich County-Otter Creek Irrigation Co. v. Lamborn, 361 P.2d 407, 409
(Utah 1961) (footnote omitted). We see no reason to depart from this
long-standing precedent.
13
DELTA v. VINCENT
Opinion of the Court
¶35 We reverse the grant of summary judgment on the
abandonment claim and remand for the claim to be considered
under our common-law precedents. Unlike forfeiture, abandonment
has no time element. Instead, it has an intent requirement. To
succeed in this claim, the Irrigation Companies must show that
Vincent or its predecessor intentionally relinquished a portion of the
water right. See id.
IV. PROPER MEASURE OF VINCENT’S WATER RIGHT
¶36 Water rights can be measured in several ways. A flow
allowance is the maximum rate at which water may be diverted and
can be measured in cubic feet per second or in miner’s inches
(approximately 500–700 milliliters per second). A volume allowance
is the maximum quantity of water that may be diverted during a
given irrigation season and is measured in acre feet (the amount of
water needed to cover one acre to a depth of one foot) or in cubic
feet. Water “duty” is the amount of water needed to irrigate an acre
in a given geographic region and is generally expressed in acre feet
per acre. The Utah legislature has directed courts to measure water
in cubic feet per second and in acre feet. See UTAH CODE § 73-1-2.7
¶37 Here, the authoritative description of Vincent’s water right
is found in the Cox Decree,8 issued in 1936 at the conclusion of a
general adjudication of the Sevier River system. The Cox Decree
specifies only the flow component of Vincent’s water right: twenty-
two cubic feet per second (c.f.s.). As the California Supreme Court
explained in 1935, water rights are often expressed in terms of flow
when river levels are unpredictable and appropriators “ha[ve] to
take the water when, as[,] and if it [is] in the stream.” Tulare
Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 996
(Cal. 1935). In such situations, flow awards cannot be thought of as
“continuous awards” but are limited to the amount of water the
appropriator has put and continues to put to beneficial use. Id. at
996–97.
7
In Utah, water duty is not a component of a water right.
However, because water duties established by the state engineer are
indicative of whether the water applied to a given piece of land is
beneficially used, water duty could be presented as evidence of
partial forfeiture through waste. See supra ¶¶ 23–24.
8
The Cox Decree is available on the website of the Utah Division
of Water Rights at http://www.waterrights.utah.gov/adjdinfo/
decrinfo/default.asp.
14
Cite as: 2013 UT 69Opinion of the Court
¶38 Here, we do not interpret Vincent’s water right as a
continuous award. If Vincent were to constantly divert twenty-two
c.f.s. during an irrigation season, it would draw more than 9,000 acre
feet of water, which is far more than Vincent or its predecessors have
ever used. The proposed determination drawn up in preparation for
the 1936 general adjudication of the Sevier River system indicated
that Vincent’s predecessor annually used 5,000 acre feet of water.
Because the Cox Decree does not indicate that this amount was
disputed or altered, we agree with the district court that it is
reasonable to infer that the volume component of Vincent’s water
right is 5,000 acre feet. Thus, Vincent’s water right consists of a
maximum rate of diversion of twenty-two c.f.s. and a total volume
allowance of 5,000 acre feet.9
IV. ISSUES LIKELY TO ARISE ON REMAND
A. Proper Forfeiture Analysis
¶39 Forfeiture occurs when an appropriator fails to use
material amounts of a water allowance during five or seven
consecutive years10 without securing an extension of time from the
state engineer. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 135
P.2d 108, 112 (Utah 1943); UTAH CODE § 73-1-4(2)(a). Because most
flow allowances are not “continuous awards,” supra ¶ 37,
appropriators do not forfeit any part of their right by failing to divert
water at the maximum flow allowance. A forfeiture analysis should
instead focus on volume. If during five consecutive irrigation
seasons, an appropriator has failed to use material amounts of its
volume allowance, a forfeiture has occurred. The volume component
of the water right should be reduced by the unused amount. The
9
To simplify future water disputes, we encourage district courts
conducting general adjudications to define water rights in terms of
both flow and volume. Both are necessary to “fully and completely
define the rights of . . . claimants to the use of the water.” UTAH
CODE § 73-4-12; see also Tulare Irrigation Dist., 45 P.2d at 996–97
(holding that to prevent waste and to clarify entitlements, water
rights “should be fixed in cubic feet per second, with a maximum
limitation in acre feet, measured, of course, by the maximum
number of acre feet used by each appropriator in the past”).
10
The statutory forfeiture period has changed several times. At all
times relevant to this appeal, the period was five years. UTAH CODE
section 73-1-4(1)(a) (prior to 2002 amendments); id. 73-1-4(3)(a)
(subsequent to 2002 amendments). The current period is seven years.
Id. 73-1-4(2)(a) (2013).
15
DELTA v. VINCENT
Opinion of the Court
flow component may be reduced in proportion to the volume
reduction, at the district court’s discretion.
¶40 Materiality, or substantiality, is another important
component of a forfeiture analysis. UTAH CODE § 73-1-4(3)(f)(iii)
(2002) (stating that forfeiture does not occur “when a water user has
beneficially used substantially all of a water right within a five-year
period”); Rocky Ford, 135 P.2d at 112. At the beginning of each
growing season, farmers plant their fields according to predictions
of how much water will be available that year. If snow levels and
other indicators suggest a dry summer, a farmer may reasonably
choose to not plant all of her fields. If, in fact, shortages turn out to
be less severe than predicted, the farmer in retrospect may have been
able to plant slightly more. However, a small amount of non-use,
especially when resulting from a reasonable prognostication of how
much water would be available, will generally not support a
forfeiture. We cannot expect farmers to predict the weather with
more certainty than climatologists, and the materiality exemption
protects them when they fail to do so. The materiality exemption
also serves to deter forfeiture claims premised on de minimis non-
use.
¶41 Finally, the number of acres irrigated is not determinative
in a forfeiture analysis, though it may be relevant insofar as it
indicates the volume of water used or whether water usage is
beneficial. Farmers may reduce the total acres irrigated to grow a
more water-intensive crop so long as they beneficially use their full
entitlement. The central question in any forfeiture proceeding is
whether the appropriator used all of its water allowance in a
reasonable manner and for a beneficial purpose.
B. Early Water
¶42 The parties dispute whether the water available to Vincent
and its predecessor between March 1 and April 15 should be
counted as available water for purposes of forfeiture analysis. The
Cox Decree states that the water right runs from March 1 through
October 1. It further states that Vincent’s predecessor,
the Samuel McIntyre Investment Company[,] shall have
the right to the use of the water allocated . . . as above
set forth, to be used by direct diversion from March 1 to
April 15, both dates inclusive. From April 16 to October
1 in each and every year [it] shall have the right to store
and impound in the Sevier Bridge Reservoir 90% of all
16
Cite as: 2013 UT 69Opinion of the Court
the water yielded by said river for satisfying [its] rights
from April 16 to October 1.
¶43 As discussed in the previous section, the focus of a
forfeiture analysis should be on volume. Thus, if Vincent and its
predecessor used substantially all of their allotment of 5,000 acre
feet, they have not forfeited their water right, even if they did not
use any water between March 1 and April 15. Distinguishing the
pre-irrigation season would be significant only in a drought year,
when the physical-causes exception applies. Under the physical-
causes exception, unavailable water cannot be forfeited, but water
that is available but not beneficially used can. See supra ¶ 32. We are
not persuaded that the Cox Decree, the proposed determination, or
any other authority supports a categorical exclusion of early water
from this physical-causes exception analysis. However, on remand,
Vincent may seek to persuade the district court that under the
physical causes exception, this early water was not available for use
because the ground was not ready to receive it.
C. Irrigation of Natural Habitats
¶44 The district court held that genuine issues of material fact
precluded summary judgment on the questions of (1) how much
water Vincent used on its bird hunting grounds and (2) whether
such use was beneficial. We do not disturb this ruling but wish to
reiterate that “watering indigenous vegetation generally is not a
beneficial use.” Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline
Operating Co., 2004 UT 67, ¶ 55, 98 P.3d 1. An appropriator has the
burden to show that under “the individual facts and circumstances
of [the appropriator’s] situation,” watering a natural habitat is
beneficial. Id. Triers of fact should be wary of hindsight justifications
for waste and of fanciful uses whose primary purpose is to protect
a water right from forfeiture. See id. ¶ 54.
CONCLUSION
¶45 A water right is maintained only to the extent it is used
efficiently and for a proper purpose. Summary judgment was
improperly granted in this case for the reasons explained above. We
remand for further proceedings consistent with this opinion.
17