Spanish Fork West Field Irr. v. Dist. Ct. of S.L. County

I concur in the result reached. I appreciate the scholarly work done by the writer of the main opinion but I am not sure that all of the matters therein treated are necessary to the result. Rather than enter into the plenary task of a critical appraisal of the statements therein made, I may better state briefly my reasons for arriving at the same conclusions.

The adjudication of a river, that is, determination of the rights of appropriators from a river and its tributaries and the relative priorities of such rights, is statutory and in nature administrative. A brief advertence to the scheme laid down for the adjudication of water rights may be helpful. By Sec. 20, Chap. 67, Laws of Utah 1919, the action for adjudication of allwater rights in a river was started by a petition to the State Engineer. By Sec. 21, upon completion of his survey, the State Engineer initiated the court proceeding by bringing "an action in the district court". Also under Sec. 22 "upon the filing of any suit for the determination of water rights" the clerk was required to notify the State Engineer, whereupon the State Engineer was required to file with the court a list of all claimants as far as known. The clerk also was required to publish notice that "such a petition has been filed, naming and describing the river system or water source involved and requiring claimants to the use of water therefrom to notify the State Engineer of their names and addresses for the purpose hereinafter set forth." (Italics added.) After that the clerk was to give notice to all the claimants as far as known of "the date when the State Engineer will begin the survey of the system or water source * * * or the fact that such survey has * * * been completed, as the case may be * * *." (Italics added.) Hence, the 1919 Act endeavored to provide for the initiation of an action for the adjudication of the river by a verified petition to the State Engineer. It also provided for converting into a general adjudication, a court action for the determination of water rights. Whether the adjudication arose out of a petition to the State Engineer or arose out of an action filed for the adjudication of water rights, the administrative features of the proceedings came together in Sec. 22. Whether Sec. 22 of Chap. 67, Laws of Utah 1919, really meant that the State Engineer was to be brought into every suit for the adjudication of water rights and the same turned into a general adjudication of the river is doubtful, although a literal reading of Sec. 22 would reach that result, unless the phrase "determination of water rights" has a different signification as used in the statutes than the term "adjudication of water rights". It may be that a suit to quiet title to water as between A and B or involving a controversy over a single right is a suit of a different nature from one for the "determination of water rights" as meant by the statute. The latter term may itself imply the idea of relative rights and priorities in a stream or part of a stream rather than a controversy at to whether A. B or C is entitled to a water right. Such interpretation would give some sense to Sec. 22 of Chap. 67, Laws of Utah 1919. But it may have been this very doubt which inspired the Code Commission to insert the amendment "if so ordered by the court". And the fact that throughout Sec. 22 it speaks of the "claimants to the use of water from the riversystem or water source involved in such action" gives countenance to the idea that the type of suit meant was one other than that involving a mere adjudication of a particular water right. At all events when an action became one to adjudicate the river — an adjudication largely in res, rather than an adjudication to quiet title between two or more claimants of the same water right, the proceedings were the child of a statute and not of equity. And that is true of the 1919 Statute, the 1933 Revision, and the 1939 Amendment.

In the action brought by the defendants to this petition which, in form, appears to be a suit to quiet title and to restrain winter flooding, the prayer reveals it to be actually a suit to adjudge the "right or rights of each defendant [plaintiffs in this application representing some 2,000 of them] herein to divert or use water from Utah Lake or its tributaries" and that the "right and title of each plaintiff herein [defendants in this application] to the use of water from Utah Lake and its tributaries be determined and quieted and that said rights and title be adjudged and decreed to be superior to any right or rights of any defendant herein to the use of said water initiated subsequent to the date when the rights of such plaintiff were initiated." It is difficult to see how this can be anything but an action to determine the relative rights of thewhole water shed involving the Provo River, Spanish Fork River, Utah Lake and Jordan River. The objectives are what they would be under Chap. 4 of Titile 100, R.S.U. 1933, as amended by Chap. 112, Laws of Utah 1939. It is true that the complaint alleges waste of water which should flow into Utah Lake because of winter flooding and "wrongful and unlawful diversions." The simple question of whether one or a number are wasting water may perhaps be tried in a suit without determination of relative rights or priorities but this suit conceives of an adjudication of relative rights over the whole water shed.

We know that there has been a determination of water rights of all appropriators of the Provo River and its tributaries. Certainly such decree fixes the rights and priorities only among such appropriators. What would be the effect among these appropriators if appropriators of an extension of the river system were intruded into the controversy, is itself a question. If the tributaries to Utah Lake were considered in themselves separate water systems rather than parts of a larger whole system, the legal conclusions might vary from those arrived at if the system of rivers were considered a unit for appropriation, with the Utah Lake only an intermediary link. In the former case it might well be that defendants here could only attack waste. They might not, even if prior to those on the tributaries, be able to stagger their appropriation dates with those of the appropriators of the tributaries or upset rights and priorities fixed by users of the various river systems flowing into Utah Lake on the theory that appropriators from Jordan River or Utah Lake, even though prior to those of the tributaries, could not compel those of the tributaries to supply what nature, through drought or lake evaporation, denied the lower appropriators. The fact that the lower appropriators take the view that Utah Lake and all of the streams flowing in or out of it is one unit system and desire rights and priorities to be fixed among all users treated as appropriators from a unit system, gives their suit the aspect of one for the adjudication of a whole water shed which is certainly as statutory as one to adjudicate a river system. It is for these reasons that I think we must conclude that the suit started by these defendants was one for the adjudication of the rivers and lake as a whole and not one in equity for the quieting of title or preventing damage. The theory of a river system adjudication is to fix each appropriator's rights and priorities so it will be definitely known whether he is or is not injuring another by taking his water. While it partakes of the nature of a declaratory judgment in many of its aspects, it also involves a number of local controversies which, instead of being tried as individual suits, are tried on objections to the findings of the State Engineer, all in one overarching suit. For the reason that there are involved numerous local controversies which are adjudicated by the decree and a declaratory judgment in reference to uncontested findings, thus combining not only many controversies in one suit but controverted and uncontroverted adjudications in the same suit, provision had to be made by statute. And the offices of the State Engineer to make a survey and ground his findings upon it, which then constituted the arena of controversy, were engaged so as to lessen the costs which might be prohibitive if each user must employ counsel to represent him in the preparation and trial of all these numerous suits within a suit. The scheme was to substitute centripetal instead of centrifugal action; to constitute the State Engineer the officer whose survey and findings would separate the contestants from the non-contestants and in that manner alone save endless effort and time which would ensue if it were done in a court room, and to make him a preliminary arbitrator of such disputes, the action of the court being on his findings when the same were contested. This seems to be a case pre-eminently suited to that procedure.

Therefore, in this state there is an exclusive statutory method provided for the determination of relative rights in a river system which, while simulating equity procedure, was not encompassed within what is conceived to be the scope of equitable jurisprudence. And the fact that the proceeding was started not through the State Engineer but under the guise of an equity suit does not seem to make it a non-statutory action. What is sought to be accomplished determines its nature. Nor do I think the change made by the 1933 Revision of our Code gave the court discretionary power to require the State Engineer to make the survey and findings or gave it power to treat what was by its nature a suit for the adjudication of a river as an equitable action. The nature of the action would be the same — statutory and not equitable. When changed back by Chap. 112, Laws of Utah 1939, the test was still the same under Sec. 100-4-3, that is, was the suit by nature basically one for the redress of a wrong, for the quieting of title of a particular right or rights or for the determination of all the relative rights and priorities in the river system. If it was the latter it must be treated as a court function derived from Sec. 100-4-3; if the former, whether it could be converted into the latter sort of action and under what circumstances need not now be decided.

The change made by Chap. 112, Laws of Utah 1939, during the pending of the action in the lower court, is a change in procedure which must be followed. Plaintiffs below have no vested rights in procedure. Boucofski v. Jacobsen, 36 Utah 165,104 P. 117, 26 L.R.A., N.S., 898. The fact that they may have spent money which they otherwise would not have spent in making surveys is unfortunate but that is one of the chances which arises by virtue of the paramount right of the legislature to vary procedure. No substantive rights of said parties are affected by the change in procedure. If, in the middle of a judicial receivership proceeding for a defunct bank, the legislature should make the Bank Commissioner the statutory receiver, the acting receiver appointed by the court could be compelled to turn over the assets and make accounting to the statutory receiver. The further liquidation of the bank would be under the new procedure. It could not be maintained that constitutional rights were being interferred with on the theory that a court of equity was being robbed of its jurisdiction to appoint a receiver, or on the theory that such act was a private or special regulation of the practices of the courts of justice, or on the theory that the creditors or the bank had a right to continue under the procedure under which they started.

This action being a creature of statute and not of equitable jurisprudence, it becomes unnecessary to treat of the question as to whether the legislature may detract from its powers previously exercised by equity. But in that regard, the anti-injunction Acts relating to labor disputes, I believe, have generally been held constitutional.