Smithfl'd W. Bench Ir. Co. v. Un. Cent. Life Ins. Co.

After this water passes the Gunnel flume it cannot be put to a beneficial use by Logan Northern. It further appears that it would not be practicably possible to return it to the stream from which it was originally diverted. In the use of water for irrigation some waste is inevitable. See Hutchins, Law of Water Rights in the West, p. 24. This water accumulating in Logan Northern Canal near the Gunnell flume apparently consists of seepage waters draining from the lands of Logan Northern stockholders and the waste water which drains from the lands of the stockholders of Logan Northern which water was not consumed in the process of irrigation. I, therefore, agree that this water must be considered to be "waste water."

I also agree that a claimant to waste water can acquire no permanent right to any specific quantity of water as against the appropriator nor is the appropriator under any obligation to permit any specific quantity of water to be discharged as waste water. The appropriator has no right to divert more waters than he can put to a beneficial use, and should waste as little as possible. See Kinney on Irrigation and Water Rights, Vol. 2, p. 1153. It has, however, been held that the

"right of the owner to cut off waste water to other lands is subject to the requirement that it be exercised in good faith, without malice," Hutchins, Law of Water Rights in the West, p. 367, citing Newton v. Weiler, 87 Mont. 164, 286 P. 133; Lambeye v. Garcia, 18 Ariz. 178, 157 P. 977; Green Valley Ditch Co. v. Schneider, 50 Colo. 606, 115 P. 705; Sebern v. Moore, 44 Idaho 410,258 P. 176.

Logan Northern is not a party to this suit. I therefore do not deem it necessary to determine whether or not this water accumulating at the Gunnell flume is still Logan Northern's water. The matter is not without some doubt. No stockholders of Logan Northern diverted water at points below the Gunnell flume; Logan Northern apparently claimed no interest in the water except to see that it did not damage others; it apparently did not intend to recapture the water. Since it is possible that this would constitute an abandonment of this water on the part of Logan Northern which would put it out of the power of Logan Northern to sell, lease, or otherwise control it, I express no opinion on the statement made by Mr. Justice LARSON that the waters at the Gunnell flume "are waters of the Logan Northern Company." A question similar to this was presented in Schulz v.Sweeny, 19 Nev. 359, 11 P. 253, 254, 3 Am. St. Rep. 888, in which a company used water to carry wood from the mountains through a flume. At the point of discharge upon a mountainous ridge the water was allowed to run to waste. The company for a valuable consideration leased the water which would be discharged from the mouth of the flume during the remainder of the year to the defendant. The Supreme Court in holding that the defendant acquired no rights in the water by virtue of the lease stated:

"The water was discharged from the flume for the purpose of getting rid of it, and left to find its way to the natural level of the country, through the lands of others, without intention to reclaim or enjoy it. Neither company undertook to exercise any control over the water after it was discharged, save to direct it to one valley or the other, and so as to do no injury to settlers along its course. These facts are conclusive evidence of an abandonment."

See also Vaughan v. Kolb, 130 Or. 506, 280 P. 518, 521, wherein the court stated:

"If the city of Baker merely allowed the water in its reservoir to escape as waste water with no intent of recapturing or enjoying it, and allowed it to find its way to the natural level of the country, its natural destination said to be Powder river, as we understand the complaint to allege, then the city after such water had escaped had no interest therein and could not confer any right either upon the plaintiff or defendants Kolb. The waste water was then subject to appropriation under the statute the same as any other water."

Several states, including Colorado, Idaho, Oregon, Montana, Nebraska and others, have statutes which made seepage and waste waters subject to appropriation under certain conditions. See Weil, Water Rights, 3rd Ed., Sec. 55. However, in the absence of such a statute it is generally held that such waste water and seepage water cannot be appropriated. See Binning v. Miller,55 Wyo. 451, 102 P.2d 54, 62, and cases discussed therein. During the times when an appropriation could be made by merely diverting the water and putting it to a beneficial use, Utah had no such statute. We need not decide whether present statutes authorize the appropriation of waste waters such as these for neither the plaintiff nor the defendants have made a statutory appropriation.

The plaintiff apparently bases its claim to the exclusive right to the use of this waste water whenever it is available upon the fact that it has been using such waste water for a long period of time without interruption. However, I do not believe that an exclusive right to the use of waste water can be acquired in this manner. This situation was discussed in Binning v.Miller, supra, where the court referred to such waste water as fugitive water and compared plaintiffs and defendants to two hunters trying to shoot down wild birds. It stated that the unsuccessful hunter could not complain because the other gets a bird. The court further stated that if A abandoned a purse each year for a number of years and B picked up the abandoned purses for a number of years, B would still not be in a position to complain if A picked it up himself one year. It would seem that this reasoning would apply to this situation. Logan Northern has abandoned water each year; plaintiff has used it for a number of years, then defendants take it one year — the plaintiff would not be in a position to complain. Logan Northern is not abandoning a right which the plaintiff could secure; it is abandoning water and the water is not the same from year to year. It is different water that is abandoned each time and the plaintiff, unless the law gives it that right, cannot complain because another stranger beats it to the water at any given time. As far as can be told from the record plaintiff is a stranger to Logan Northern. As such, plaintiff has been using this abandoned waste water for many years. But by such long usage plaintiff has neither obtained a right to have Logan Northern continue to abandon water in the future nor the right to exclude other strangers from scrambling for any water which may be abandoned in the future. However as stated in Binning v. Miller, supra:

"if a party has once obtained possession of such water, and another party not entitled thereto should attempt to deprive him thereof, the possessor would doubtless have a cause of action. Wiel, supra, Sec. 55."

Now as to the rights of the defendants to exclude the plaintiffs from future use of this water. Mr. Justice LARSON concludes that this is an Irrigation Company in which the waters are held as owners in common. I am unable to locate anything in the record which reveals whether the water is held in common through the corporation or only the canal facilities for transferring and applying it are mutual or whether it is an ordinary stock company where the water is conveyed and stock issued for it. The purposes for which a corporation is organized are limited to such as are expressly defined in its articles of incorporation except as to those other powers which are necessarily incidental to such expressed purposes. Davis v. Flagstaff Silver M. Co., 2 Utah 74; 4 Tomp Corp., Sec. 5638. It may be the usual practice in mutual irrigation companies to have legal title to the water in the corporation in trust for the benefit of the stockholders as owners in common. But the terms of the trust are governed by the articles. The articles of Logan Northern are not in the record. I do not think that this court can assume from the fact that the parties refer to Logan Northern as a mutual water company, that it is merely a trustee of the water, or that it is a corporate water master with no power to buy or sell water, or that the stockholders of that company are owners in common of the water. I do not believe that there is sufficient evidence in the record to justify a holding that either the plaintiff or the defendants have any right to this water except as they are able to take possession of it after it has been abandoned.

It therefore follows that I agree that the judgment of the lower court should be reversed. However, the evidence adduced thus far would not permit the entry of a decree quieting title in either the plaintiff or the defendants.