Little Cottonwood creek comes down a canyon on the west slope of the Wasatch Mountains and runs across Salt Lake Valley into the Jordan river. More than eighty years *Page 258 ago the settlers in this valley constructed the Little Cottonwood canal and continuously since then have diverted water for irrigation and culinary purposes from said creek through said canal. During the peak of high water in the late spring or early summer the flow of the creek for a short period reaches a maximum of about two hundred cubic feet per second. During the period of lowest water, that is, midwinter, the average flow is in the neighborhood of fourteen cubic feet per second.
The irrigation season extends from about April 1 to about October 15. During the irrigation period all the waters of this creek are used for irrigation. In the winter practically all of the water in the creek is diverted by canals and distributed to the farmers under the canals for domestic use and for watering stock. The Little Cottonwood creek water has been used in the above manner by plaintiff and its predecessors in interest and by others continuously since 1848.
In November, 1925, the defendant filed with the state engineer an application to appropriate ten second feet of water of Little Cottonwood creek to be saved and stored by him by delivering to prior appropriators entitled to culinary and domestic waters by means of a pipe line system proposed to be installed by him. In this application he states that the water applied for is to be stored each year from January 1 to December 31 and is to be used from April 1 to October 31.
In December, 1925, the defendant filed a second application with the state engineer asking leave to exchange water of Utah Lake to be acquired by him for an additional ten second feet of water from said creek appropriated by prior appropriators.
Throughout the briefs and arguments, the first application is called the "storage" application or an application to appropriate, and the second application is called the "exchange" application. *Page 259
Plaintiff protested the allowance of said applications and each of them, and, from the order of the state engineer denying said protest, the plaintiff appealed to the district court. In the district court the protests of plaintiff were sustained, and the court made a decree disapproving both applications and ordering the state engineer to cancel the same. From this decree defendants appeal.
The Little Cottonwood canal diverts water from the creek by means of a dam and open canal which has earth bottom and banks. During the nonirritating season the plaintiff and other users divert into ditches and canals the larger part and at times all the flow of said creek, such amount averaging about fourteen second feet. The amount of water actually consumed by the people under the canals for domestic use and watering stock is about one second foot. About thirteen second feet of water carried in the ditches and canals is lost in evaporation and seepage. The applications of defendant are based upon his proposal to make a reservoir and dam in the creek and to conduct the irrigating and culinary water therefrom in pipes to the present owners of the winter waters and thereby save and appropriate the winter waters now lost. Defendant contends that in this manner he can redeem from waste and store for beneficial use the amount of water covered by his first application, to wit, ten second feet per day during the nonirrigating season. To this he proposes to add ten second feet of exchange water which he intends to acquire.
In the year 1910, in the case entitled Union East JordanIrrigation Company, Plaintiff, v. Richards Irrigation Companyet al., Defendant, then pending in the district court of Salt Lake county, all persons who had any interest or claim in the waters of Little Cottonwood creek were parties to the action and were in court. The court then and there made a decree wherein it was adjudged that as early as 1856 all the waters of said creek had been appropriated to beneficial uses and that there was no more unappropriated water *Page 260 in said stream. This decree is still in force. The defendants in this action were not parties in that suit.
Other facts will be stated in the opinion.
1. Is the water defendant seeks to appropriate public water? Is it subject to appropriation in the manner proposed?
It is a matter of historical knowledge and also of judicial notice that in the early days in the West the right to use water was acquired by diversion and user and without any other ceremony. In the first quarrels that arose, courts adopted the doctrine of priority. It was not permissible to divert water from a creek or other source to the prejudice of a valid prior appropriation.
The first statutes in Utah that bear upon this subject were passed in 1880. In those statutes the right to use water for any useful purpose is expressly recognized. Rights, presumably the existing appropriations, are acknowledged to be "vested rights" and deemed as "a primary right, to the extent of, and reasonable necessity for such use thereof." Comp. Laws Utah 1888, § 2780. The Little Cottonwood canal was constructed and the water therein was appropriated at least thirty years before the statutes of 1880 were passed. When Utah became a state January 4, 1896, "all existing rights" to the use of water "for any useful or beneficial purpose" were "recognized and confirmed." Constitution of Utah, art. 17, § 1. In 1903 the Legislature passed a law declaring the waters of all streams and other sources in this state, whether flowing above or under ground, in known or defined channels to be public property subject to all existing rights to the use thereof. This law is still in the statutes. Comp. Laws 1917, § 3463; Laws Utah 1919, p. 177, c. 67.
Our present statutes (Laws 1919, c. 67) provide that "rights to the use of the unappropriated public water in the State may be acquired * * * in the manner hereinafter provided, and not otherwise." Section 41. Following *Page 261 this, the procedure for the appropriation of unappropriated waters is prescribed. It was this procedure the defendant followed in making the two applications involved in this action.
Under our statutes reasonable losses from evaporation and seepage are not classified as willful waste or a wrongful use of water. In fact our latest statutes provide that, in case one person uses the canal of another to convey additional water, he shall compensate the owner of the canal for the damage caused thereby, and the additional water turned in shall bear its share of the loss by evaporation and seepage. Laws Utah 1919, c. 67, § 5. A similar provision is found in section 9 of the same act.
It is a matter of common knowledge and also of legislative and judicial notice that evaporation and seepage occur in all open ditches and that the toll therefrom is quite heavy in ditches with earth banks and bottoms. We see that our law recognizes this toll and taxes a part of it to the user of another person's canal or ditch. If there is any remedy in a case where the loss from seepage is great enough to be called waste, the remedy is found in section 39 of chapter 67, Laws Utah 1919, which provides that, whenever any person or user of water from any source believes that there is a waste of water, he may report the matter to the state engineer or to the court; if to the engineer, he may investigate the matter and report his findings to the court. The jurisdiction to determine and adjudicate the matter is vested wholly in the court and nowise in the engineer. This point will be more fully discussed later. From the above it is very evident that the water lost in seepage is appropriated water devoted to a use and is not public water. It is water that has been removed from the creek for a use. That use includes three items which are: (1) To provide culinary and domestic water; (2) as necessarily implied, to pay the seepage toll; and (3) to have enough running water to carry the water to its place of use in a potable condition. The appropriation was made for these purposes and has been *Page 262 devoted to these purposes continuously for nearly three generations. True, the use may not be of the most economical kind, but it is a beneficial use. It is not a waste of water in the sense affirmed by appellant. As well could he argue that there is a waste of lumber in building a house, because the sleepers and joist, not being exposed, are not directly consumed by the wear and tear of the weather. Seepage is a loss, but not necessarily a waste. It is a necessary loss in the earth canal and ditch system of water use which has prevailed in this state from the beginning. These older applications of necessity included in their scope enough water to cover the loss from evaporation and seepage in addition to the amount required for the chief use intended. Concrete and iron piping were not obtainable in those days.
I am of the opinion that the seepage of the Little Cottonwood canals is not unappropriated water, is not public water, and is not subject to appropriation under the laws of Utah. This use is a costly use, but it is a use that always was and still is necessary in the operation of the canal — a use as essential as that of the ditch itself.
The plan of appropriation proposed by appellant contemplates a dam and a reservoir that will impound practically all the winter waters and nonirrigation season waters of the creek, except such culinary water as he releases in pipe lines. This would leave the canals and ditches dry during a half of each year. Meanwhile these canals and ditches would dry out, and, when the farmers turned in the irrigation water in the spring, a large portion of it would be lost in seepage sucked into the dry ground. As a matter of plain arithmetic and plain common sense, it is manifest that, if these applications are allowed and consummated, the ultimate result will be that all the loss from seepage in all the canals and ditches under the creek will fall upon the irrigation waters of the farmers. It is equally manifest that, if the fundamental principle upon which the defendant relies is established, the seepage from this irrigation water will be subject to another appropriation to be "saved" for some purpose *Page 263 or other and so again until all the water of the farmer is gone. The principle upon which appellant relies ignores our constitutional guaranty that private property shall not be taken or damaged for public use without just compensation. Our statutes do not expressly mention water or water rights as property subject to condemnation by a private person, but they do provide that cities may condemn water and water rights and in such cases the value of the land must be considered with the water. Yet in the case at bar we have a proceeding that is, indirectly at least, a species of condemnation without compensation. If this proceeding should be upheld by the court and the principle upon which it is based should be declared valid, the utmost confusion would follow.
A large part of agricultural Utah lies in a fertile valley along the west foot of the Wasatch Range. Fully three-quarters of the population of Utah live in this valley. It is watered and made productive by a number of mountain streams generally similar to the Cottonwood, that flow down the mountains and into the valley. Along all these streams the same general practice, custom, and methods of irrigation and of culinary use of water prevail and have prevailed since the pioneer days. To permit the appropriation of such seepage in the manner proposed would throw all these farming communities into turmoil and consternation. It would demand a sudden abandonment of long-established customs and methods and suddenly throw upon these none too prosperous farming communities the hard alternative of either losing their water or quickly building, at great cost, water-tight flumes and conduits.
Without actual experiment there is no way of telling how much irrigation water would be consumed in extra seepage if the canal were kept dry during the winter season. It is sufficient to say that there would be some extra seepage taken from the summer water if the winter flow were taken out of the canal. In fact, as I view this case, it would be sufficient to say, in this particular instance, that there *Page 264 is danger of such a loss. Mere danger of loss to the farmers should defeat the appropriations made by appellant because the proposed proceedings contemplate no indemnity for such a loss. The case of Big Cottonwood Tanner Ditch Co. v. Shurtliff,56 Utah 196, 189 P. 587; Id., 49 Utah 569, 164 P. 856, is not at all in point upon the questions so far considered because that case was a contest between private parties over water privately owned and did not involve any question pertaining to appropriation.
I am of the opinion that the seepage water in question in this case is not subject to appropriation and that it is not public water, but, on the contrary, that it is private water lawfully appropriated and devoted to a use. The present use may not be an economical use, but it is a beneficial use that has existed for eighty years and has been tolerated by courts and recognized by statutes. This use cannot at this late date be called waste for the purpose of enabling whomsoever will to seize the water. When public necessity demands that the seepage of these systems be devoted to a higher use, the Legislature will speak, and I have little doubt that, when this event occurs, some provision will be made whereby the entire cost of saving the seepage for another's use will not be cast wholly upon the canal owner.
2. Another question arising in this case pertains to the extent of the authority of the state engineer to act in the matter of a stream that has been entirely appropriated and has been adjudicated by a court.
Laws Utah 1919, c. 67, § 39, provides, in substance, that, in case any person believes that there is a waste of water from any stream or water source, he may report the matter to the state engineer, or may petition the court for an investigation of the alleged waste, whereupon the engineer may make the investigation and report his findings to the court, or the court may order or make an investigation, and, if the investigation so warrants, may "Proceed to make a *Page 265 determination, if such has not yet been had, or a redetermination, in whole or in part of the rights to the use of the water of said stream or source."
The following section, section 40, of said chapter, in substance, provides that, whenever a general determination of water rights upon any river system or water source has been made by the district court, any claimant of water seeking a redetermination of water rights in such source or seeking the revision of any final judgment other than as provided in section 21 shall, before commencing an action, furnish a bond to cover all costs that may be awarded against him and all damages that may result to parties therefrom. Section 21 above referred to provides for a special statutory proceeding not relevant to this case.
Section 32 of said chapter, referring to the special statutory proceeding, authorizes the engineer, in conducting said proceeding and before the court has made a final decree, to distribute water according to the engineer's determination until the court otherwise orders, provided that the rights to the use of said waters have not been heretofore decreed or adjudicated, said waters shall be distributed in accordance with such decree until the same be reversed, modified, vacated, or otherwise legally set aside.
Speaking to the very point mentioned in the proviso to section 32, this court said in Eden Irrigation Co. v. District Court,61 Utah 103, 211 P. 957, 960:
"There is, therefore, not even a semblance of a right given to the engineer to interfere with adjudicated or so-called vested rights."
And speaking of alleged waste and the remedy therefor, the court further says:
"We have already pointed out, however, that although a user whose rights have been adjudicated may waste water the water must, never-the less, be apportioned to him in accordance with the decree of the court until the fact that water is being wasted and the extent of such waste is judicially established; and when so established the decree may then be modified." *Page 266
To the same effect are the cases of Caldwell v. Erickson,61 Utah 265, 213 P. 182; Tanner v. Beers, 49 Utah 536,165 P. 465; Smith v. District Court, 69 Utah 493, 256 P. 539.
The state engineer, even when administering a water system, must follow and abide by a former adjudication of a stream or water source. That adjudication is a judgment in rem as to him. It is made so by statute. If that judgment decrees that all waters in that stream are appropriated, the engineer is bound thereby until the decree is modified or set aside. It is a judgment by the state concerning subject-matter he is handling as an agent of the state, and it serves no purpose to say that he was not a party to the action. The state engineer was not a party to any of the actions that adjudicated the ancient rights in Utah streams and creeks. Most of these actions were begun, and many of them were adjudicated, years before there was a state engineer. The very words of the statute fixing the duties of the state engineer make these adjudications part of the rules he must follow and also make it plain that even a waste of water under a right once adjudicated is not to be cured by any method other than a modification of the decree that awarded the original right. The words of the statute make it equally plain that it is the intent and purpose of the entire act to validate and preserve the water rights established by former adjudications and to permit no interference therewith except by the prescribed procedure in the court that made the adjudication.
Against this view of the situation appellants urge the objection that the principles announced will prevent appropriations of waste water and prevent the saving of water now being wasted. A short answer to this contention is that the act does not deem water that has been appropriated and adjudicated and is in use to be public water. Nor does the law intend that the question of what use of water is waste or not waste shall be decided by an appropriator or by the engineer. The statutes expressly provide that this is a judicial question. But, in case the court does decide there *Page 267 is waste, who is to get the amount of water saved? And how? Willful waste is one thing, and an inferior or uneconomical use is another thing. The courts in the statutory proceeding outlined may prevent waste and may decide whether the water being wasted belongs to other ditches or to the public. But, as before intimated, in a case where the court has decided that all the waters of a stream are appropriated and has apportioned those waters to various users, the presumption arises that there is no waste and that presumption exists until the court decides otherwise. In case the court later finds that there is a waste, the court may either relieve the parties prejudiced thereby, if any, or may, by stating the extent to which the water is unappropriated, restore the waste water to public ownership. But such a proceeding would be cumbersome and would not give the appellant any benefit, urge the appellants. This is true, and a similar complaint could be made by any claimant of property to which he is not entitled.
The attention of the court has been called to many cases wherein the waste of water is condemned. I concur in all that is said in these cases. The waste of water in arid regions is an evil that should be condemned. Water is a "precious fluid"; water is the "life of the desert." But precious to whom? Precious to the farmer who uses it to make the earth give forth her bounties; fully as precious to him as to any other member of the community.
Here another word as to what is a beneficial use as distinguished from a waste. This court takes judicial notice of the general geography of this state, of its history, and of the general facts of its agricultural condition and development and of how classes of men earn their bread. In short, a court is presumed to know what every man of ordinary intelligence must know about such things. We know that the hardy pioneers who made the canal in question had nothing to work with except oxen and plows; we know that they made earth canals and ditches. We know that seepage consumed much of the water diverted. We know that this *Page 268 seepage loss was a necessary toll and that the ditch could not be used without paying that seepage toll. We know that seepage was not considered a waste of water in the sense in which appellant contends, but, on the contrary, was considered an incident of the appropriation and a use, and we know that our present statutes so recognize it. Now when did the seepage loss change from a use to a waste? When the appellant filed his paper with the engineer? Not at all. It has remained a use from the time the water was turned into the canal up to the present time.
To declare the seepage water waste in this particular instance or in instances like this where the waters of a stream have been fully appropriated and apportioned and distributed by adjudications to users, and to declare that such seepage waters are subject to appropriation would be to extend an open invitation to exploiters and adventurers to file appropriations on practically all the streams coursing down the west slope of the Wasatch Range. Such a ruling could and probably would destroy the peace, comfort, and good order of dozens of communities. It would jeopardize the rights and means of livelihood of many hundreds and probably thousands of honest, hard-toiling, frugally living farmers and their families.
The authority to make a ruling that might result in such evils does not rest with the state engineer or with any appropriator. As stated above, when public necessity demands that there be a change in customs, usages and methods in the use of water, the change will be made in an equitable and orderly manner. It is not improbable that measures for the salvage of seepage water, whether promulgated by the Legislature or by the court, will provide that those who propose to save the winter seepage in the ditches and canals of the farmers must furnish the farmers with cement canals or pipes so that the farmers will not be compelled to lose water in the irrigation season by "paying the soakage" of dry ditches. That such an idea is not repulsive to the judicial mind is indicated in the case of Big *Page 269 Cottonwood Tanner Ditch Co. v. Shurtliff, supra. To that extent only is that case in point here.
I have no hesitation in saying that the state engineer had no authority to grant any application on the seepage water of the plaintiff company. Neither the word nor the spirit of the law gives him that authority.
3. As to the "exchange" application, I concur with the opinion of the CHIEF JUSTICE. In the storage application the appellant states that he "through agreement with the Draper Irrigation Company will acquire ten second feet of Utah Lake water," and that it is his intention to exchange this ten second feet of Utah Lake water for Little Cottonwood water so purchased in the reservoir proposed by his first application and furnish culinary water therefrom in a pipe line to those who "are affected by this exchange" and turn the Utah Lake water into the creek.
The court below found that the Utah Lake water is inferior in quality to Little Cottonwood water and that turning it into the creek will render all the creek water below that point unfit for culinary or domestic use.
The statutes prohibit the turning of such water as that above described into natural streams. Laws Utah 1919, c. 67, § 9.
This application should have been rejected on the ground of illegality of purpose.
Throughout this discussion in so far as it holds that seepage is a use, I have held in mind those ancient, fully appropriated, and fully adjudicated streams of the same type, character, and history as Little Cottonwood. Nothing said or intimated in this discussion contemplates waste of water that results from broken or dilapidated ditches, or loss preventable at reasonable cost or by the exercise of ordinary care or intelligence. There is a point where usage may be of such a low order as to be classifiable as waste, but on an adjudicated stream this is a judicial question. *Page 270
I am of the opinion that the decree of the trial court should be affirmed in all respects.