Adams v. Portage Irrigation, Reservoir & Power Co.

Appellants have filed a petition for a rehearing and the State Engineer has filed a supporting brief as Amicus Curiae. Complaint is made that we upset the doctrine of statutory appropriation of public waters. The answer to this contention is found in the following statement from the opinion, 95 Utah 1, 72 P.2d 648, 654:

"If this be new or added water, no right thereto can attach or be asserted until after an application has been filed in the office of the state engineer. Deseret Live Stock Co. v.Hooppiania, 66 Utah 25, 239 P. 479; Bountiful City v. DeLuca, 77 Utah 107, 292 P. 194, 72 A.L.R. 657. If it be considered as merely a change in place of diversion, it also must start with an application in the office of the state engineer."

What we did say was that the records (the pleadings of appellant and the evidence) show the waters in dispute, from which appellant sought to exclude respondents and the public generally, were waters which appellants had not appropriated, either by user before enactment of the statutory method, chapter 100, Laws Utah, 1903, now Rev. St. 1933, 100-3-1 et seq., or by application in the office of the engineer since such method was prescribed. The trial court so found, and we upheld that finding. Thus, holding that appellants had never had any rights to the waters used by respondents, the question of adverse user since 1903 is in nowise determinative of the cause.

We cannot better state the gist of the opinion than to quote what we therein stated:

"This action came about, not from any effort of plaintiffs to assert a right to waters which defendant Company has been diverting from Portage creek, nor from an effort of defendants to protect any waters they have heretofore diverted or used beneficially, but in the effort of defendants to bring new, further, and additional waters to their point of diversion, and the doing of which plaintiffs think infringes their rights and takes from them valuable rights which depreciates in an almost confiscatory way their private lands. It is defendants' plan and purpose to go up the natural channel far above their point of diversion and by means of excavations, cement boxes over springs, and pipe lines, convey all the water of the upper springs area down the canyon for three-quarters of a mile and thus save and increase the flow and amount of water at their point of diversion, thus recovering more water than they have heretofore diverted from the stream or beneficially used. * * *"

"No application was made to the state engineer either to appropriate this water or to change the point of diversion of their water. * * *"

"The right of respondents to take water for camp purposes from Portage creek and to water their sheep therein is a lawful right, recognized by the Constitution and the statute, unless in so doing they are appreciably decreasing the quantity or deteriorating the quality of the waters to the use of which appellants have a priority, a preferential right. * * *"

"It is admitted that defendants' works would inclose the entire stream now flowing in its natural channel, thus excluding everyone (the public) from enjoyment of all rights therein. When a person seeks to do this, he has the burden of showing his right so to do, and this burden appellants did not carry. * * *"

"Appellants, having admitted an attempt to interfere with and prevent respondents and the public generally from enjoying their rights incident to waters flowing in their natural channel, and having failed to show any superior right in themselves to the waters, any rights which would limit or curtail the rights of the public, are not in a position to complain because of the decree of the court."

The petition for a rehearing is denied.

HANSON and MOFFAT, JJ., concur.