Rocky Ford Canal Co. v. Cox, Judge

MOFFAT, Justice. On the 15th day of June, 1935, plaintiffs filed in this court a petition for a writ of prohibition. An alternative writ was issued and served upon defendants. Defendants appeared under the order to show cause, filed briefs, and during the November setting of cases the cause was argued and submitted. Except as a matter of history to show how the cause arose, the facts are of little importance and are not in dispute. Briefly, the defendants in this proceeding filed an application in the district court of the Fifth judicial district of the state of Utah in an action there pending, which action was for the purpose of obtaining a general adjudication of the rights to the use of the waters of the Sevier river system, under the general adjudication statute, chapter 67, Laws of Utah 1919, now title 100 of R. S. Utah 1933. The action has been pending for a number of years. The waters have been distributed by a commissioner appointed by the court, and according to the court’s orders. Evidence has been taken and stipulations entered into and filed, but no final judgment or decree has been entered by the court. *150 On the 7th day of June, 1935, I. Abner Cowley and John B. McMillan, Jr., defendants in this action, being parties to .the action then pending for the adjudication of the waters of the Sevier river, entitled Richlands Irrigation Co. v. West View Irrigation Co. et al., filed petitions in the district court of Millard county, Utah, where the action was originally commenced, for an order authorizing changes in the point of diversion and place of use of certain waters of the Sevier river system. The ownership of the waters, the place of diversion, and purpose and place of use which were sought to be changed, was- in the Cove River Irrigation Company in which defendants were stockholders and water users. This company was owner of a portion of the waters of Cove river, tributary to the Sevier river. The company consented to the proposed change. Notice of the petition to make the change was duly served on the parties interested who appeared by counsel; the same counsel as appear herein. The plaintiffs objected to the jurisdiction of the court to hear and determine the matter as to change of place of diversion or use of the waters mentioned, and alleged the court was without jurisdiction. No question was raised as to the sufficiency of notice, or pleadings to properly present issues. Plaintiffs moved to dismiss the petitions and also demurred thereto. The motions were denied, and the objections and demurrers overruled, and an order entered temporarily permitting the changes asked for by the petitioners in the trial court, defendants here. By the order the water commissioner was directed, among other things, to make observations as to losses, if any, and to report to the court. No answer was filed or issues raised except as raised by the motions and demurrers. The petitioners in the lower court alleged that the changes of place of diversion and use were requested for the reason that relief through the procedure by filing an application in the state engineer’s office could not be secured for “the present year,” and that it was necessary to get an order *151 allowing the requested changes in order to mature various crops that year. Essentially and the only point to be determined is whether or not the statute authorizing the state engineer to receive, consider, and approve or reject if protested an application for the change of a point of diversion or place or purpose of use of water is exclusive and deprives the district courts of jurisdiction in such matters until the procedure by way of the state engineer’s office has been complied with. The statute about which the controversy revolves is section 100-3-3, R. S. Utah 1933, and reads: “Any person entitled to the use of water may change the place of diversion or use, and may use the water for other purposes than those for which it was originally appropriated, but no such change shall be made, if it impairs any vested right, without just compensation; no change of point of diversion, place or purpose of use shall be made except on the approval of an application of the owner by the state engineer. Before the approval of any such application the state engineer must, at the expense of the applicant to be paid in advance, give notice thereof by publication in some newspaper having general circulation within the boundaries of the river system or near the water source in which the point of diversion of the water is located; such notice shall give the name of the applicant, the quantity of water involved, the stream or source from which the appropriation has been made, the point on the stream or source where the water is diverted, the point to which it is proposed to change the diversion of the water, the place, purpose and extent of the present use, and the place, purpose and extent of the proposed use. Said notice shall be published at least once a week for a period of four weeks. Any person interested may, at any time within thirty days after the last publication of said notice, file with the state engineer a protest against the granting of the application, stating the reasons therefor, which shall be duly considered by the state engineer, and he shall approve or reject the application for change of point of diversion, place or purpose of use. Such application shall not be rejected for the sole reason that such change would impair vested rights of others, but if otherwise proper, it may be approved upon condition that such conflicting rights be acquired. The determination of the state engineer shall be final unless contested in court within sixty days after written notice to the applicant of the action of the state engineer. Any person holding an approved appli *152 cation for the appropriation of water may in like manner change the point of diversion, place or purpose of use.” Defendants in this proceeding indicate in their brief that this case in itself is of no importance except as it may become a precedent, as the defendants discontinued the use under the order of the district court upon the application to this court for the writ of prohibition by plaintiffs. The briefs and arguments of counsel for both plaintiffs and defendants are devoted to the question, as to whether or not the change of place of diversion and use is a permanent change or a temporary one. This application being for a writ of prohibition and the claimed basis for its issue being want of jurisdiction in the district court, we are unable to see how the matter of whether the order sought is to be a permanent one or a temporary one could affect the jurisdiction of the court to make the order during the pen-dency of a general adjudication suit involving all the water rights of the river system. The statutory language here drawn in question is: “No change of point of diversion, place or purpose of use shall be made except on the approval of an application of the owner by the state engineer.” R. S. Utah 1933, § 100-3-3. Whether or not the statutory language provides an exclusive method of procedure, conforming to which and not otherwise a change of place of diversion or place or purpose of use may be made, where the proceeding for such is an original proceeding in the district court, and not as an incident to a general determination suit, is not before us and we need not and do not now decide. The Oregon and Colorado cases and texts based largely upon them, cited by plaintiffs, are not in point in the instant case. In those cases the right to the use of water was held to be appurtenant to the land and in order to change the place of use an application was required to be made to the state engineer. They were all original proceedings; either *153 injunctive relief to prevent the change or direct proceedings to make the change. None of them was incidental to a general adjudication action as provided for under Utah statutes. The case of Broughton v. Stricklin, 146 Or. 259, 28 P. (2d) 219, 30 P. (2d) 332, was an injunctive proceeding brought to prevent a change attempted to be made without authority, and is illustrative. On the facts, the same result would, no doubt, have been reached regardless of the statute. The Oregon court, among other matters, held that an application to the state engineer and approval of exchange of place of use of water was a condition precedent to the exercise of the right to change the place from that specified by a decree in a former adjudication of water rights. Inseparable appurtenancy of land and water as provided by the statute occupies a prominent place in the opinion. Literally applied, the Oregon cases represent the extreme doctrine 'on appurtenancy of water rights and the procedure that must be followed for change of place of use of water. We need not comment further on the cases cited and discussed in the briefs. Our statutes are different. As heretofore stated, there is pending a proceeding in the district court where the application was filed for a general determination of the rights to the use of the water of the Sevier river system. The court has jurisdiction of the parties and the subject-matter in that action. Has the proper procedure under the circumstances, been pursued to invoke or set in motion that jurisdiction? The plaintiffs and defendants in this proceeding are admittedly parties to the general adjudication proceeding and appeared therein upon the application to the court for the change of place of diversion and use. An applicant to be entitled to a peremptory writ of prohibition must show that the tribunal sought to be subjected to the prohibition order is without or acting in excess of jurisdiction, and that the applicant has no plain, speedy and adequate remedy in the ordinary course of law. E. S. Utah 1933, 104-69-1 and 104-69-2. Con *154 struction Securities Co. v. District Court, 85 Utah 346, 39 P. (2d) 707. In the instant case, it is a question of jurisdiction only. Chapter 4 of title 100, R. S. Utah 1938, provides a procedure for determination of water rights. It provides also a procedure by application to appropriate unappropriated public waters of the state. These are recognized to be waters to the use of which there is an asserted claim. These are also waters subject to appropriation, that is, unappropriated public waters. By section 100-4-1, R. S. Utah 1933, it is provided that, upon the request of five or more or a majority of water users upon any stream or water source for an investigation relative to water rights, it is the duty of the state engineer to make an investigation, and if conditions justify to file an action in the district court to determine the various rights. Individuals may file an action for determination of their water rights. Such action may by order of the district court become a general adjudication action of the waters of the river system in which the parties are interested. R. S'. Utah 1933, 100-4-18. It is also provided (section 100-4-3 as amended by chapter 105, p. 197, Laws of Utah 1935) that when suit is filed the clerk of the district court in which it is filed shall notify the state engineer. The state engineer is then required to examine records, make field investigations and surveys, and report as required by section 100-4-11, and pursuant to that section “the state engineer shall formulate a report and a proposed determination of all rights to the use of the water of such river system.” (Italics added.) Notice, filing of claims, and objections are all provided for. By the Constitution of the state of Utah (article 8, •§ 7), “jurisdiction in all matters civil and criminal, not excepted in this Constitution,” is conferred upon district courts, and *155 by article 17, “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.” The Constitution became effective in January of 1896. The statute heretofore quoted which contains the recognition of the right of making changes of the point of diversion and place or purpose of use of a water right, and which provides the procedure for making it, as well as the procedure for a general adjudication and determination of all the rights of a river system is a part of chapter 67, Laws of Utah 1919. Title 100, R. S. Utah 1933. The Constitution having thus conferred on district courts a general jurisdiction, no limitation may by construction be placed upon that jurisdiction unless the lawmaking power clearly so indicates. To extend the provisions of section 100-3-3, providing that “no change of point of diversion, place or purpose of use shall be made except on the approval of an application of the owner by the state engineer,” so as to deprive a court of general jurisdiction of power to litigate such issues where a general adjudication is pending is unwarranted. Such construction tends to defeat rather than to make effective the purpose sought to be accomplished under a general adjudication. As heretofore indicated, a suit seeking a general adjudication for the purpose of determining all of the water rights of a river system imposes upon the state engineer certain duties as to the proposed determination, and during and upon such determination being made, “The state engineer shall distribute the waters in accordance with said proposed determination until a final decree is rendered by the court, or until the court shall otherwise order; provided, that if the right to the use of said waters has been theretofore decreed or adjudicated, said waters shall be distributed in accordance with such decree until the same is reversed, modified, vacated or otherwise legally set aside.” R. S. Utah 1933, 100-4-11. It is also provided that the state engineer “Shall carry into effect the judgments of the courts in relation to the dm *156 sion, distribution or use of water under the provisions” relating to the administration and distribution of water. R. S. Utah 1933, 100-5-3, as amended by Laws of Utah 1935, c. 105. It will be observed that the statute makes it the duty of the state engineer during the time a general adjudication is pending to distribute the water pursuant to the orders of the court, and after judgment is rendered to carry that judgment into effect by distributing the water to those entitled thereto according to the judgment of the court. The state engineer is, as to such duties, made an officer of the court charged with carrying its orders and judgments into effect. No exclusive jurisdiction in such matter seems to be vested during the pendency of such suit in the office of the state engineer, nor is there a conflict of jurisdiction. In cases where an application is made to the state engineer to appropriate unappropriated water, and such application is protested and an action is brought for a plenary review, the “parties shall be served with process as in other cases and notice of the pendency of such action shall be filed with the state engineer * * * which shall operate to stay all further proceedings [by the State Engineer] pending the decision of the district court.” R. S. Utah 1933, 100-3-14, 100-4-1 and 100-4-18. Surely the Legislature did not intend that a different rule should prevail in a general adjudication suit where the engineer is an active participant. When a judgment is entered upon a general adjudication of the waters of a river system, it is the duty of the clerk of the court to issue certificates to persons awarded the right to use of water in triplicate, setting forth the matters referred to in section 100-4-11, supra. “Three copies of said certificate shall be transmitted, in person or by registered mail, to such party, who shall, within thirty days, have one of the same recorded in books specially provided for that purpose in the office of the county recorder of the county in which the water is diverted from its natural channel, one in the county where the water is applied, and one shall be delivered to the state *157 engineer and filed in his office as part of the records thereof.” R. S. Utah 1933, 100-4-17. It is then the duty of the state engineer or a duly authorized assistant, or commissioner duly appointed by the court, to carry into effect the judgment and distribute the water as required by the certificates thus issued, recorded and filed. R. S. 1933, 100-5-3, as amended. Likewise, if an “owner” files an application to change the point of diversion, place, or purpose of use, and the state engineer withholds his approval, although there appears to be no express authority therefor except upon protest filed and duly considered, the application shall not then be rejected for the sole reason that such change would impair vested rights but may be conditionally approved subject to the acquiring of such conflicting rights. R. S. 1933, 100-3-8. In the language of the statute relating to an application to appropriate water, if the state engineer “rejects” the application, such “owner” is not without remedy. He may apply to the court to have his right to do so determined. The provisions of section 100-3-14, providing for a plenary review of the decisions of the state engineer applicable to section 100-3-5 or 100-3-6, or 100-3-7 are applicable to other decisions of the state engineer affecting the rights of an owner, appropriator, or user of water already appropriated. So far as appears, there is an established right to the use of the water and a recognized place or purpose of use. It is merely a question of jurisdiction of the court to consider or order the change for which the petition was filed. When an appropriation of water has been made and the right to the use thereof perfected, certain of the elements involved in that right are: (a) Quantity of water appropriated; (b) time, period, or season when the right to the use exists; (c) the place upon the stream at which the right of diversion attaches; (d) the nature of the use or the purpose to which the right of use applies, such as irrigation, domestic use, culinary use, commercial use, or otherwise; (e) the *158 place where the right of use may be applied; (f) the priority date of appropriation or right as related to other rights and priorities. There are also certain limitations, restrictions, responsibilities, and duties pertaining to a water right. It must be used economically or without waste. It must be so controlled and used as not to damage others. It is so related to the rights of others that regulations are required. When necessary, periods of rotation may be imposed. When a right to the use of water has been acquired with all the elements involved therein, may it be said the court in a general adjudication suit has jurisdiction to determine all the elements of the right and impose all the limitations, restrictions, liabilities, and duties except one; the point of diversion? To change the point of diversion, place, or purpose of use is not the initiation of a new right but making use of an old right at another place or from another point of diversion. The old right may not be used either at the old or new place to the detriment of others. The limitation imposed by the statute on the right to change the place of diversion or place or purpose of use is that it shall not injure the rights of others, or if it does, that before such change is made such rights must be acquired or the injury compensated. Situations may be suggested where the district court upon proper pleadings, notice, and hearing without the consent of the state engineer, and over the objection of the water user or owner, may require the point of diversion or purpose or place of use to be changed. Thus, a point of diversion may be included within the inundated area of a proposed reservoir. An established point of diversion may materially or unreasonably interfere with the general regulation of the stream or source of supply to which the right applies; may cause waste of water; may prevent a full and proper utilization of such waters. Where a change in the point of diversion does not injure any appropriator or user of water, upon proper presentation to the court there would *159 seem to be no legal reason why such change should not be decreed. It may, however, be noted that the language of the statute upon which plaintiffs rely (R. S. 1938,100-3-3) is peculiarly negative; “no change of point of diversion, place or purpose of use shall be made except on the approval of an application of the owner by the state engineer.” If the “owner” refuses to file an application, may not others under proper circumstances file such application or institute a proceeding to require such consent to make the change? Limitation by the statute of the right to file an application to an “owner” does not create a situation where others having rights may not find relief. No such limitation on the jurisdiction of the court or rights of water users was intended. All proceedings had before the state engineer for a change in the point of diversion, or place or purpose of use are reviewable by the district court whenever a party interested seeks such review. When a suit is pending before a district court for the purpose of determining the extent and nature of the rights of the various water users, including the place where they shall divert water, it would seem strange to say the Legislature intended to tie the hands of the court and render it powerless to determine the rights and issues relating to a change of the point of diversion in a general adjudication suit. It is quite generally the policy of the Legislature as well as that of the courts to simplify litigation and make legal determinations as effective and enduring as possible. Such was the apparent aim of the law under review. Those provisions of the statute relating to a general adjudication of water rights contain no intimation that the jurisdiction of the district court where such suit is pending is in any way limited. On the contrary, the court is directed to “determine and establish the rights of the several claimants to the use of the water of said river system or water source; and among other *160 things it shall set forth the name and postoffice address of the person entitled to the use of the water; the quantity of water in acre feet or the flow of water in second feet; the time during which the water is to be used each year; the name of the stream or other source from which the water is diverted; the point on the stream or other source where the water is diverted; the priority date of the right; and such other matters as will fully and completely define the rights of said claimants to the use of the water.” R. S. 1933, 100-4-12, 100-4-15 and 100-4-17. We are of the opinion the provisions of chapter 4 of title 100, R. S. Utah 1933, with the amendments thereto, vest in the district court complete jurisdiction when a suit has been properly begun and carried forward to determine all the questions that may be raised relating to the parties and the use of the waters drawn into the litigation. The matter of determining the “point on the stream or other source where the water is diverted” is one of the elements of a water right, and is included in the jurisdiction to hear and determine questions drawn in by the general determination. One of the purposes of the general adjudication statute is to prevent a multiplicity of suits. To require an application to the state engineer with the detailed procedure would merely make another suit when all the issues should be determined in one. We are of the opinion the district court has jurisdiction to hear and determine the matter presented by the petition seeking a change of place of diversion and use. The permanent writ of prohibition applied for is denied and the alternative writ heretofore issued is recalled and set aside. Such is the order. Costs to defendants. ELIAS HANSEN, C. J., and EPHRAIM HANSON, J., concur.