Salina Creek Irrigation Co. v. State

CALLISTER, Justice.

Our prior treatment of this case¹ has evidently created some confusion and misunderstanding among the parties concerned. Perhaps a chronological review of the various proceedings and some appropriate comment as to each might be helpful to a sound conclusion of the matter.

On November 12, 1958, the State Engineer rule that the plaintiff, Salina Creek Irrigation Company, could satisfy the minimum flow right awarded to it under the Cox Decree in accordance with its priority, but that "all other direct flow rights, designated either as minimum rights or given only one flow right” were to be next satisfied before any water could be diverted by the plaintiff to satisfy its maximum right.

The plaintiff sought a review of this ruling by filing a civil action in the lower court, and that court, by a decree entered on December 20, 1960, found in favor of the plaintiff and reversed the ruling of the State Engineer, saying, among other things, “That none of the defendant water users have rights described in said Cox Decree as ‘minimum and maximum’ rights, and the provision at page 230 of the Cox Decree * * * does not make the diversion by the plaintiff of its maximum quantities under said Cox Decree dependent on whether or not any or all of defendants are receiving all or any part of their or any of their awards, in said Decree.” This decree had the effect, among the litigants, that the plaintiff, which had both minimum and maximum rights with the earlier priority, would be entitled to divert the flows awarded under both rights ahead of any use by any of the defendants, because none of them had been awarded “minimum and maximum” flows but were the recipients of only a “one-flow award,” together with a priority. This decree, and particularly the findings and conclusions which support it, determined that the language on page 230 of the Cox Decree was inapplicable to the controversy.

The decree of the lower court was thereafter appealed to this court and our prior decision was handed down on August 26, 1962, in which two members concurred in the majority opinion, one concurred in the result, and two dissented. The majority opinion reversed the trial court but did not affirm the ruling of the State Engineer. The special concurring opinion stated, in part: “The Engineer’s determination as to minimum-maximum rights should be affirmed, as is done in the main opinion.” The two dissenters, in effect, agreed with the ruling of the State Engineer. All of this created a doubt as to the role now to be played by the trial court.

A rehearing having been granted, and the matter again having been presented to us by oral argument and written briefs, we now conclude that the decision of the lower court must be reversed and the ruling of the State Engineer affirmed. To avoid any further misunderstanding, we adopt the dissenting opinion in the prior decision, which reads as follows:

“We are not persuaded that there is any ambiguity in the Cox Decree in providing that a user has a ‘maximum and a minimum’ right. That phrase should require no further explanation. But in view of the controversy here involved, it seems appropriate to make this observation: it means that a user such as Salina Creek, which has a ‘maximum and a minimum’ right, is entitled to use its minimum right before subsequent appropriators having either ‘maximum-minimum’ rights, or one-flow rights are satisfied. However, after the minimum rights of the subsequent maximum-minimum right holders, and the requirements of the subsequent one-flow right holders are met, then prior appropriators such as Salina Creek have the right to use water above their minimum right until their maximum is reached. This interpretation is made even more clear by the fact that the provision from page 230 of the Cox Decree, quoted in the main opinion, is at the conclusion of the decree, after all water rights have been allocated.”

Reversed. No costs awarded.

CROCKETT, J., concurs.

1 . 13 Utah 2d 335, 374 P.2d 24 (1962).