Salt Lake City Corp. v. Haik

2019 UT App 4

THE UTAH COURT OF APPEALS

SALT LAKE CITY CORPORATION AND METROPOLITAN WATER
DISTRICT OF SALT LAKE AND SANDY,
Appellees,
v.
MARK C. HAIK AND PEARL RATY,
Appellants.

Opinion
No. 20170238-CA
Filed January 10, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 140900915

Paul R. Haik, Attorney for Appellants
Shawn E. Draney, Scott H. Martin, and
Dani N. Cepernich, Attorneys for Appellees

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

APPLEBY, Judge:

¶1 Salt Lake City Corporation (SLC) and the Metropolitan
Water District of Salt Lake and Sandy (the District) filed a claim
seeking a declaratory judgment as to the nature, validity, and
priority of water rights claimed by Mark C. Haik (Haik) and
Pearl Raty (Raty). Raty filed various counterclaims seeking to
compel SLC to supply water to her lot in the Albion Basin
Subdivision in Little Cottonwood Canyon. Haik and Raty appeal
the district court’s grant of partial summary judgment to SLC
and the District on their declaratory judgment claim. Raty
appeals the district court’s dismissal of her counterclaims. We
affirm.
 Salt Lake City Corp. v. Haik

BACKGROUND

¶2 This appeal involves two sets of claims: (1) those asserted
by SLC and the District seeking a declaratory judgment of Haik’s
and Raty’s claimed water rights, and (2) those asserted by Raty
seeking to compel SLC to provide water to her undeveloped lot.
We discuss separately the relevant facts of each set of claims.

Haik’s and Raty’s Water Rights

¶3 Haik and Raty claim water rights to Little Cottonwood
Creek (the Creek), and seek to divert that water to their lots in
the Albion Basin Subdivision. Their claimed rights are portions
of an award made to the South Despain Ditch (the Ditch) in the
Morse Decree of 1910. That award was a first primary right to a
flow of .25 cubic feet per second (the Original Water Right).

¶4 In 1934, the Ditch signed an agreement (the 1934
Agreement) that granted SLC the right to use most of the
Original Water Right “during the winter or non-irrigation season
from October 1 to April 1 of the following year.” During that
“non-irrigation” period, the Ditch had only the right to 7,500
gallons per day, which was to be diverted from the Creek.

¶5 The Ditch was originally used by four separate Despain
families. In 1950, one of those families sold its property, and the
purchaser claimed a one-fourth interest in the Original Water
Right. The state engineer approved a change application, which
authorized the purchaser to move the point of diversion from
the Creek to a well on his property and to use the water to
support three houses, livestock, and irrigation. After the
purchaser filed a proof map and proof of permanent change, the
state engineer certified the change application and designated
the purchaser’s water right as WRN 57-7800.

¶6 In 1978, the property with WRN 57-7800’s point of
diversion (the well) and place of use was subdivided into four

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lots. In 2000, the state engineer’s records showed that the owner
of one of those lots (Lot 31) owned 100 percent of WRN 57-7800.
At that time, the state engineer approved a change application
filed by Lot 31’s owner, authorizing returning the point of
diversion to the Creek. The approved change application
specified that it was “subject to the conditions and provisions of”
the 1934 Agreement.

¶7 In 2003, WRN 57-7800’s owner conveyed it by quitclaim
deed to six separate parties, in equal interests, as tenants in
common. Haik was one of those six parties; Raty acquired her
interest later.1 WRN 57-7800 was divided into six new water
right numbers, representing the six parties’ relative interests.
Each of the parties filed change applications with the state
engineer, requesting to divert water from the Creek to their
respective Albion Basin lots for year-round domestic use. The
state engineer approved two of those change applications, but
did not approve or deny Haik’s or Raty’s applications, which
remain pending. 2

¶8 SLC and the District filed this action seeking judicial
review of the state engineer’s decision on the two approved
change applications. Additionally, they filed a cause of action
seeking a declaratory judgment of the validity, nature, and
priority of the water rights claimed by the two approved change

1. One of the original six parties was Butler Management Group,
which conveyed its interest in WRN 57-7800 to Raty. Because
this transaction does not affect the issues on appeal, we recite the
facts as though Raty was one of the original six parties.

2. At oral argument, counsel for SLC and the District clarified
that the remaining two portions of WRN 57-7800 were acquired
by a third party who has agreed to be bound by the outcome of
this case.

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application holders as well as the rights claimed by Haik and
Raty. SLC and the District eventually reached a settlement
agreement with the holders of the two approved change
applications, in which SLC acquired the water rights of those
two parties. As a result, all claims were dismissed except the
claim seeking a declaratory judgment of Haik’s and Raty’s
claimed water rights.

¶9 In the petition, SLC and the District alleged they had
standing to bring their claim: SLC “owns a majority of the
rights” to use the Creek’s water, including its rights acquired
from the Ditch in the 1934 Agreement. The petition also alleged
that the water drawn under SLC’s rights is treated in the
District’s water treatment plant, and the District sells that water
to its member cities. It estimated that approximately 500,000 Salt
Lake County residents depend on the District for a portion of
their water. Further, the District had submitted an application to
appropriate “50,000 acre-feet of high flow” water from the
Creek.

¶10 SLC and the District asserted that Haik’s and Raty’s
proposed use of their claimed water rights would “impair and
interfere with [SLC’s and the District’s] respective rights to
divert, treat and provide [the Creek’s] water to the members of
the public.” They also said that, if the owner of WRN 57-7800
were to change the point of diversion from the well on Lot 31 to
the Creek—as authorized by an approved change application—
the water available to Creek water right holders, including SLC
and the District, would diminish.

¶11 Haik and Raty filed a motion to dismiss SLC and the
District’s claim for lack of standing. They asserted that the
petition did not allege an injury or a reasonable probability of
future injury, as required to invoke the court’s jurisdiction. The
court denied the motion to dismiss, concluding that SLC and the
District “have standing to assert [their claim] based on

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overlapping interests in a common source [of water], [the
Creek].”

¶12 After discovery, SLC filed a motion for partial summary
judgment. In that motion, it asked for a declaratory judgment
that Haik’s and Raty’s claimed water rights to the Creek were
limited by the 1934 Agreement. That is, during the “winter or
non-irrigation months,” Haik and Raty were each entitled to no
more than their appropriate portion of the 7,500 gallons reserved
by the Ditch in the 1934 Agreement.

¶13 The district court granted SLC’s motion for partial
summary judgment. It concluded that, because the 1934
Agreement was “admitted and unambiguous,” “any rights
owned by [Haik or Raty] are limited” by the 1934 Agreement.

¶14 SLC and the District filed another motion for partial
summary judgment, claiming that any portion of WRN 57-7800
Haik and Raty acquired had been forfeited as the result of seven
consecutive years of nonuse. See Utah Code Ann. § 73-1-4(2)(a)
(LexisNexis 2012). In support, they asserted that Haik and Raty
produced no evidence of having used any portion of WRN 57-
7800 from 2003, when they obtained their claimed rights,
through January 2014, shortly before SLC and the District filed
their claim. Further, “there has been no opportunity for [Haik
and Raty] to use WRN 57-7800, as they have no interest in Lot
31[,] . . . its current point of diversion.” And although Haik and
Raty offered evidence that others had used the water, they never
entered an agreement with any other person or entity to allow
that use, as the forfeiture statute requires. See id. § 73-1-4(2)(e)(i).

¶15 Haik and Raty opposed the motion for partial summary
judgment. They argued that their water rights had been put to
beneficial use and in support presented records and testimony
that showed WRN 57-7800’s water allowance had been diverted
to the Ditch, and that others, including successors of the Original
Water Right, had used substantially all of the diverted water.

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They also argued that the motion did not legally establish
forfeiture because it did not address the volume, materiality, or
substantiality of any nonuse, but instead merely alleged there
had been no use at all.

¶16 The district court granted SLC and the District’s motion
for partial summary judgment, declaring “that any portion of
WRN 57-7800 acquired by [Haik and Raty] has been forfeited by
nonuse.” The court determined that SLC and the District
“submitted straightforward facts, that . . . [n]o use has been
made by anyone of WRN 57-7800 as it existed in Lot 31 since
2003, and no nonuse application has been filed.” It noted that
Haik and Raty did not own an interest in Lot 31 that would have
allowed them to use WRN 57-7800’s point of diversion. And
although an approved change application authorized the owners
of WRN 57-7800 to change the point of diversion from the well
on Lot 31 to the Creek, Haik and Raty never attempted to certify
that change. 3

¶17 The court also considered Haik’s and Raty’s proposed
evidence of beneficial use. It noted the evidence tended to show
that water had been diverted to the Ditch, and that others,
including successors to the Original Water Right, used the water.
But the court concluded, “[D]iversion does not equal use, and
does not support an inference of use.” And absent a lease or

3. When a change application is approved, the applicant may
“take any steps required to apply the water to the use named in
the application” and “perfect the proposed application.” Utah
Code Ann. § 73-3-10(3)(b)–(c) (LexisNexis 2012). “Upon the
satisfaction of the state engineer” that the authorized change
“has been perfected in accordance with the application, and that
the water . . . affected by the change has been put to a beneficial
use,” the state engineer issues a certificate of appropriation
describing the beneficial use. Id. § 73-3-17(1).

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agreement with Haik or Raty, the fact that others used the water
was legally insufficient. (Citing Utah Code Ann. § 73-1-4(2)(e)(i).)
The court explained that the Original Water Right is no longer a
communal water right, and WRN 57-7800 is a separate right,
representing a one-fourth interest of the Original Water Right.
Because the relevant water right is WRN 57-7800, not the
Original Water Right, the court concluded that use by the Ditch’s
successors was also insufficient. In the end, the court concluded
that “any rights received under the 2003 transfer . . . were lost
after 7 years of undisputed non-use.”

Raty’s Counterclaims

¶18 Raty filed various counterclaims against SLC attempting
to compel SLC to provide water to her lot in the Albion Basin
Subdivision. Raty’s lot is outside SLC’s corporate boundaries,
but the Albion Basin Subdivision is inside the city’s approved
service area. Specifically, SLC holds an approved change
application authorizing it to divert water to the Albion Basin
Subdivision for the domestic requirements of thirty-five houses.

¶19 First, Raty argued she was entitled to receive water from
SLC under Article XI, Section 6 of the Utah Constitution, which
requires municipalities to preserve, maintain, and operate the
water it owns or controls “for supplying its inhabitants with
water at reasonable charges.” Utah Const. art. XI, § 6. Second,
she argued she was entitled to protections from SLC’s refusal to
supply her lot with water under the due process clause of the
Utah Constitution. See id. art. I, § 7. Third, she argued that, in
refusing to supply her lot with water, SLC was in violation of the
uniform operation of laws provision of the Utah Constitution.
See id. art. I, § 24. Fourth, Raty sought a declaration that SLC’s
provision of water outside of its city limits was subject to
regulation by the Public Service Commission.

¶20 SLC and the District moved to dismiss Raty’s
counterclaims, asserting each failed to state a claim upon which

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relief could be granted. The district court agreed and dismissed
Raty’s counterclaims. It determined that Raty failed to allege she
was entitled to water from SLC under Article XI, Section 6
because her lot was outside Salt Lake City’s corporate
boundaries and she was therefore not an “inhabitant” of Salt
Lake City as required to receive protection under that provision.

¶21 The court also determined that Raty failed “to allege a
violation of uniform treatment of laws” because she did not
identify “any similarly situated person . . . that had been treated
differently” and she did not allege “personal animus or bias”
against her. Further, SLC’s decision “to curtail further
development in Albion Basin in order to protect the watershed”
was “unquestionably a legitimate interest of the city.” The court
determined Raty’s due process claim failed “for lack of a
protectable property interest” because she “does not have a
resident’s right to water service.” And the court refused to
declare that SLC was subject to public regulation as a utility,
citing multiple opinions of the Utah Supreme Court that rejected
such a theory.

¶22 The district court entered a final judgment reflecting its
rulings on SLC and the District’s motions for partial summary
judgment and Raty’s counterclaims. Haik and Raty appeal.

ISSUES AND STANDARDS OF REVIEW

¶23 First, Haik and Raty argue that SLC and the District
lacked standing to bring their claim. “[W]hether a given
individual or association has standing to request a particular
form of relief is primarily a question of law, although there may
be factual findings that bear on the issue.” Washington County
Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 18, 82 P.3d 1125
(quotation simplified). “We review such factual determinations
made by a [district] court with deference,” but “we closely
review [district] court determinations of whether a given set of

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facts fits the legal requirements for standing, granting minimal
discretion.” Id. (quotation simplified).

¶24 Second, Haik and Raty argue the district court lacked
subject matter jurisdiction because SLC and the District failed to
exhaust their administrative remedies. “[W]hether a court lacks
subject matter jurisdiction due to a party’s failure to exhaust
administrative remedies is a question of law, reviewed for
correctness.” Republic Outdoor Advert., LC v. Utah Dep’t of Transp.,
2011 UT App 198, ¶ 12, 258 P.3d 619.

¶25 Third, Haik and Raty argue the district court erred in
granting partial summary judgment to SLC and the District. “We
review a district court’s grant of summary judgment for
correctness and afford no deference to the court’s legal
conclusions.” Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011
UT 33, ¶ 18, 258 P.3d 539. Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Utah R.
Civ. P. 56(a).

¶26 Fourth, Raty argues that the district court erred in
dismissing her counterclaims. Whether the court properly
granted a motion to dismiss is a question of law, which we
review for correctness. Whipple v. American Fork Irrigation Co., 910
P.2d 1218, 1220 (Utah 1996). In considering a motion to dismiss,
courts should “assume that the factual allegations in the
complaint are true and . . . draw all reasonable inferences in the
light most favorable to the plaintiff.” Id. at 1219. “[D]ismissal is
justified only when the allegations of the complaint clearly
demonstrate that the plaintiff does not have a claim.” Id. at 1220. 4

4. Although Haik and Raty identify seven issues, much of their
brief consists of conclusory statements, which are “unsupported
by analysis or authority” and fail “to properly cite to the record.”
(continued…)

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ANALYSIS

I. Standing

¶27 Haik and Raty argue that SLC and the District lacked
standing to bring their claim. We disagree. Because the parties
each claim rights to use water from the same source, SLC and the
District have “a personal stake in the outcome of the dispute” as
required by the traditional test for standing. See Washington
County Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 20, 82
P.3d 1125 (quotation simplified).

¶28 In Utah, the Declaratory Judgment Act gives “[e]ach
district court . . . the power to issue declaratory judgments
determining rights, status, and other legal relations within its
respective jurisdiction.” Utah Code Ann. § 78B-6-401(1)
(LexisNexis 2012). The act specifies that it is meant “to be
remedial.” Id. § 78B-6-412. That is, the act’s provisions are “to be
liberally construed and administered” in order “to settle and to
afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations.” Id.

¶29 Although declaratory judgments are “statutory in nature,
[they] must meet the requisite justiciable and jurisdictional

(…continued)
State v. Green, 2005 UT 9, ¶ 12, 108 P.3d 710. Rule 24 of the Utah
Rules of Appellate Procedure “requires an appellant’s brief to
contain the contentions and reasons of the appellant with respect
to the issues presented with citations to the authorities, statutes,
and parts of the record relied on.” Bank of Am. v. Adamson, 2017
UT 2, ¶ 11, 391 P.3d 196 (quotation simplified); see also Utah R.
App. P. 24(a)(8). Thus, “while we will do our best to respond to
the substance of [Haik’s and Raty’s] claims,” we address only the
arguments that are adequately briefed. Rose v. Office of Prof’l
Conduct, 2017 UT 50, ¶ 64, 424 P.3d 134.

20170238-CA 10 2019 UT App 4
 Salt Lake City Corp. v. Haik

requirements of any action.” Boyle v. National Union Fire Ins. Co.,
866 P.2d 595, 598 (Utah Ct. App. 1993). Before a district court can
proceed in an action for declaratory judgment, “(1) there must be
a justiciable controversy; (2) the interests of the parties must be
adverse; (3) the parties seeking relief must have a legally
protectible interest in the controversy; and (4) the issues
between the parties must be ripe for judicial determination.”
Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983) (quotation
simplified). “Requirements (2) and (3) represent the traditional
test for standing,” which is at issue here. Id.

¶30 The traditional test “requires a plaintiff to show some
distinct and palpable injury that gives rise to a personal stake in
the outcome of the dispute.” Morgan, 2003 UT 58, ¶ 20 (quotation
simplified). “The need for such a personal stake frequently is
described as a requirement that the plaintiff’s injury be
particularized,” Society of Prof’l Journalists v. Bullock, 743 P.2d
1166, 1170 (Utah 1987) (quotation simplified), as opposed to a
generalized grievance that is “more appropriately directed to the
legislative and executive branches of the state government,”
Jenkins, 675 P.2d at 1149.

¶31 In an action seeking a declaratory judgment of a party’s
claimed water rights, the standing requirement is satisfied
where there is “measurable evidence of a direct connection
between the sources from which the parties have [or claim]
rights to draw water.” Morgan, 2003 UT 58, ¶ 25. In such a
situation, the parties’ claims to that water source are in
direct conflict, and a declaratory judgment can “resolve
uncertainties surrounding [their] legal rights.” Sanpete County
Water Conservancy Dist. v. Price River Water Users Ass’n, 652 P.2d
1302, 1307 (Utah 1982); see also Utah Code Ann. § 78B-6-412
(LexisNexis 2012) (explaining that the purpose of declaratory
judgments is to relieve uncertainty).

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¶32 Here, SLC and the District meet the traditional test for
standing because the parties claim overlapping interests in a
common source of water, the Creek. SLC “owns a majority of the
rights” to use the Creek’s water, including its rights acquired
from the Ditch under the 1934 Agreement. Further, the District
treats the water drawn under SLC’s rights and sells it to cities
around Utah. SLC and the District estimate that approximately
500,000 Salt Lake County residents depend on the District for a
portion of their water. The District has also submitted an
application to appropriate “50,000 acre-feet of high flow” water
from the Creek.

¶33 As holders of rights to the Creek’s water, SLC and the
District may use the state’s declaratory judgment statute to seek
“relief from uncertainty and insecurity with respect to [their]
rights, status, and . . . legal relations” with those who claim
rights to that same source. See Utah Code Ann. § 78B-6-412; see
also Jenkins, 675 P.2d at 1148 (observing that the Utah Declaratory
Judgment Act authorizes “a new form of relief, which in some
cases will provide a fuller and more adequate remedy than that
which existed under the common law”).

¶34 That is exactly what SLC and the District did in this case.
Haik and Raty claim portions of the Original Water Right
through their shares of WRN 57-7800. The state engineer has
authorized the owner of WRN 57-7800 to divert water from the
Creek to use on Lot 31. Further, Haik and Raty each filed a
change application with the state engineer that, if approved,
would allow them to divert the Creek’s water to their lots in the
Albion Basin Subdivision.

¶35 In short, SLC and the District have standing to seek a
declaratory judgment of the nature, validity, and priority of
Haik’s and Raty’s claimed water rights because the parties each
claim rights to draw and use water from the same source. See
Morgan, 2003 UT 58, ¶ 19.

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II. Exhaustion of Administrative Remedies

¶36 Haik and Raty argue that the district court lacked
subject matter jurisdiction because SLC and the District failed
to exhaust their administrative remedies. As we understand
their argument, they assert that SLC and the District must first
appeal the state engineer’s decision on the pending change
applications.

¶37 Because “the state engineer acts in an administrative
capacity only and has no authority to determine rights of
parties,” the district court did not lack subject matter jurisdiction
based on SLC and the District’s failure to appeal the state
engineer’s decision on the pending change applications. See
Jensen v. Jones, 2011 UT 67, ¶ 10, 270 P.3d 425 (quotation
simplified).

¶38 In their brief, Haik and Raty correctly note that a party
may seek judicial review of a final action of the state engineer
“only after exhausting all administrative remedies available.”
Utah Code Ann. § 63G-4-401(2) (LexisNexis 2016); see also id.
§ 73-3-14(1)(a) (2012) (“A person aggrieved by an order of the
state engineer may obtain judicial review in accordance with
Title 63G, Chapter 4, Administrative Procedures Act . . . .”). But
SLC and the District do not seek judicial review of the state
engineer’s final action; they seek a declaratory judgment of the
nature, validity, and priority of Haik’s and Raty’s claimed water
rights. Such a “determination is beyond the authority of the state
engineer in approving or rejecting a change application.” Jensen,
2011 UT 67, ¶ 12.

¶39 The office of the State Engineer was created “to keep
records of all established water rights and those to be acquired in
the future, to supervise the distribution of the water, and to keep
records of and regulate future appropriations and changes in the
place of diversion, use and nature of the use.” Green River Canal
Co. v. Thayn, 2003 UT 50, ¶ 29, 84 P.3d 1134 (quotation

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simplified). In performing those duties, the state engineer “acts
in an administrative capacity and does not have authority to
adjudicate the rights of water users.” Id. ¶ 30. Instead, the
adjudication of parties’ water rights is left to the courts. See
Jensen, 2011 UT 67, ¶ 11 (“The statute governing change
application proceedings leaves the adjudication of the rights
which the applicant may have to the courts in another kind of a
proceeding and not to the Engineer who is merely an executive
officer.” (quotation simplified)).

¶40 We therefore conclude the district court did not lack
subject matter jurisdiction based on SLC and the District’s failure
to appeal the state engineer’s decision on the pending change
applications.

III. Summary Judgment

¶41 Haik and Raty argue the district court erred in granting
partial summary judgment to SLC and the District on their
forfeiture claim. As we understand their brief, Haik and Raty
challenge that ruling on three grounds. First, they argue the
court erred in determining that Haik and Raty failed to put their
water rights to beneficial use for the statutory seven-year period.
Second, they argue the district court applied an incorrect legal
analysis of forfeiture. Third, they argue the district court erred in
determining that the forfeiture claim was not barred by the
statute of limitations under Utah Code section 73-1-4. We discuss
each argument in turn.

A. Beneficial Use

¶42 Haik and Raty argue the district court erred in
determining that they had not put their claimed water rights to
beneficial use for the statutory seven-year period.

¶43 Whether a water right holder has put her “water to
beneficial use is a mixed question of fact and law,” Butler,

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Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co.,
2004 UT 67, ¶ 43, 98 P.3d 1, and we grant the district court’s
ruling “significant, though not broad, discretion,” id. ¶ 50. But
“[w]ater forfeiture rulings generally depend heavily on
questions of fact (e.g., whether and how much water was
diverted and when, where, and to what end the diverted water
was used).” Id. ¶ 33. We will reverse the court’s findings of fact
“only if they are clearly erroneous.” Id. That is, “if they are not
adequately supported by the record, resolving all disputes in the
evidence in a light most favorable to the [district] court’s
determination.” Id. (quotation simplified).

¶44 In Utah, “a drop of water is a drop of gold.” Delta Canal
Co. v. Frank Vincent Family Ranch, LC, 2013 UT 69, ¶ 19, 420 P.3d
1052 (quotation simplified). “[T]he state is vitally interested in
seeing that none of the waters are allowed to run to waste or go
without being applied to a beneficial use for any great number of
years.” Eskelsen v. Town of Perry, 819 P.2d 770, 775–76 (Utah 1991)
(quotation simplified). The legislature has therefore “provided
that a water right can be lost for nonuse.” Id. at 776. Utah’s
forfeiture statute provides that “[w]hen an appropriator or the
appropriator’s successor in interest . . . ceases to use all or a
portion of a water right for a period of seven years, the water
right or the unused portion of that water right is subject to
forfeiture.” Utah Code Ann. § 73-1-4(2)(a) (LexisNexis 2012).

¶45 Here, the district court determined that Haik and Raty
had not put their claimed water rights to beneficial use since
they obtained them in 2003—a period exceeding seven years.
The court based that conclusion on “straightforward facts”
submitted by SLC and the District that showed a complete lack
of use during that time.

¶46 After reviewing Haik’s and Raty’s arguments, we
conclude they have failed to show that the district court erred in
making that determination. As the district court noted, Haik and

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Raty offer no evidence of having used the water associated with
WRN 57-7800 since 2003. What they rely on is evidence
establishing that water was diverted to the Ditch, and testimony
that the diverted water was used by others, including parties
with interests in the Original Water Right. They assert that those
diversion records “absolutely establish that water was
delivered,” and that WRN 57-7800 has been used “to the present
day by users and owners of the [Original Water Right].”

¶47 But this evidence is legally insufficient to show that Haik
and Raty put their individual portions of WRN 57-7800 to
beneficial use. The forfeiture statute states that a water right is
subject to forfeiture when the unused water is “permitted to run
to waste” or “beneficially used by others without right with the
knowledge of the water right holder.” Id. § 73-1-4(2)(d)(i)–(ii).
Use by others will save a water right holder from forfeiture only
when such use is “according to a lease or other agreement with
the appropriator or the appropriator’s successor in interest.” Id.
§ 73-1-4(2)(e)(i). Because Haik and Raty offer no evidence of a
lease or agreement under which any third party has used their
portions of WRN 57-7800 since 2003, their evidence of use fails as
a matter of law.

¶48 This is true regardless of whether successors to the
Original Water Right have used the water that represents WRN
57-7800. As the district court noted, the Original Water Right is
no longer a communal right. One of the four original Despain
families sold the property, and the purchaser claimed a one-
fourth interest, which became WRN 57-7800. SLC and the
District’s claim is directed at Haik’s and Raty’s portions of WRN
57-7800, not the Original Water Right.

¶49 In sum, we conclude that Haik and Raty have failed to
show that the district court’s ruling on beneficial use was in
error. We agree with the court’s conclusion that Haik and Raty
“offer no evidence of having used the water associated with

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WRN 57-7800 since” 2003, the time they claim to have acquired
their respective portions of that right. Further, they offer no
evidence of having entered a lease or other agreement
authorizing any third party to use their water rights. 5

B. Analysis of Volume, Materiality, or Substantiality

¶50 Haik and Raty argue the district court erred by failing to
analyze the volume, materiality, or substantiality of their
nonuse. See Delta Canal Co. v. Frank Vincent Family Ranch, LC,
2013 UT 69, ¶¶ 39–40, 420 P.3d 1052. But as the district court
noted in its ruling, there was “no need for quantitative analysis”
because the evidence showed a complete absence of use during
the statutory period.

¶51 In the context of forfeiture, “beneficial use has two
different components: the type of use and the amount of use.” Id.
¶ 22 (quotation simplified). As to the amount of use, “[f]orfeiture
occurs when an appropriator fails to use material amounts of a
water allowance” during the statutory period. Id. ¶ 39 (emphasis

5. To the extent Haik and Raty argue that their change
applications protect their water rights from forfeiture, we
disagree. The relevant provision states that forfeiture “does not
apply to . . . a water right subject to an approved change
application where the applicant is diligently pursuing
certification.” Utah Code Ann. § 73-1-4(2)(e)(ix) (LexisNexis 2012)
(emphasis added). Here, the only approved change application
authorized the owner of WRN 57-7800 to use water on Lot 31,
and Haik and Raty have never pursued certification of that
application. Instead, they seek to divert water to their lots in the
Albion Basin Subdivision as described in their pending,
unapproved change applications. The district court was
therefore correct in determining that the change applications did
not protect Haik’s and Raty’s water rights from forfeiture.

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added). That is, because “[a] water right is maintained only to
the extent it is used efficiently and for a proper purpose,” id.
¶ 45, “a water right may be forfeited either in whole or in part,”
id. ¶ 28.

¶52 The Delta Canal opinion, upon which Haik and Raty rely,
provides guidance on the proper analysis in the context of
partial forfeiture claims. See id. ¶¶ 39–41. Haik and Raty rely on
two principles from Delta Canal, neither of which apply here. The
first principle is that courts should focus on whether “an
appropriator has failed to use material amounts of its volume
allowance,” as opposed to its “flow allowance.” Id. ¶ 39. Second,
“to deter forfeiture claims premised on de minimis non-use,”
courts should focus on the “materiality” or “substantiality” of
any nonuse. Id. ¶ 40.

¶53 But, as SLC and the District note, those principles
presuppose that the water right holder has put the water to some
amount of use. Contrary to Haik’s and Raty’s assertions, the
district court did not “repudiate” the analysis described in Delta
Canal. Instead, it correctly determined that the analysis “is
simple” in this case because there was no evidence of any
beneficial use. That is, if there is no use, “there is no need for
quantitative analysis” of the extent of that use.

¶54 We agree with the district court. A quantitative analysis
of volume and materiality is necessary only when there is some
evidence of beneficial use. Here, there is none.

C. Statute of Limitations

¶55 Haik and Raty argue the district court erred in
determining that SLC and the District’s forfeiture claim was not
barred by the statute of limitations in Utah Code section 73-1-4.

¶56 Under Utah Code section 73-1-4, a “water right may not
be forfeited unless a judicial action to declare the right forfeited

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is commenced . . . within 15 years from the end of the latest
period of nonuse of at least seven years.” Utah Code Ann. § 73-1-
4(2)(c)(i) (LexisNexis 2012). The statute’s language establishes
that the fifteen-year limitations period does not begin to run
until “the end” of the latest seven-year period of nonuse. Id. That
is, to trigger the running of the statute of limitations, the water
right at issue must have been returned to beneficial use.

¶57 Here, as previously discussed, supra ¶¶ 45–46, the district
court determined that the undisputed evidence showed the
water rights at issue have not been put to beneficial use since
2003. We therefore agree with the district court that the statute of
limitations did not bar SLC and the District’s forfeiture claim.

IV. Raty’s Counterclaims

A. Article XI, Section 6

¶58 Raty argues the district court erred in dismissing her
claim under Article XI, Section 6 of the Utah Constitution. We
disagree.

¶59 Article XI, Section 6 requires that a municipality preserve,
maintain, and operate the water it owns or controls “for
supplying its inhabitants with water at reasonable charges.”
Utah Const. art. XI, § 6. But that section does not create “a legal
duty to provide water service to all members of the public.”
Thompson v. Salt Lake City Corp., 724 P.2d 958, 959 (Utah 1986).
Because Article XI, Section 6 mentions only “inhabitants,” the
duty does not extend to “others beyond the limits of the city.”
Platt v. Town of Torrey, 949 P.2d 325, 329 (Utah 1997) (quotation
simplified); see also Thompson, 724 P.2d at 959.

¶60 Raty’s appeal turns on whether she pleaded sufficient
facts to establish that she is an “inhabitant” of Salt Lake City as
defined in Article XI, Section 6. In dismissing her claim, the court
concluded that “the common sense meaning of inhabitant in

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relation to a municipality would be someone residing within the
corporate boundaries of the city.” Thus, because Raty’s lot is
outside SLC’s city limits, with regard to that lot, the court
concluded she had not alleged she was an inhabitant of SLC
entitled to protection under Article XI, Section 6.

¶61 Raty asserts that the term inhabitant deserves a more
“inclusive interpretation.” She seems to base her argument on
SLC’s approved change application, which authorizes it to divert
water to the Albion Basin Subdivision for the domestic support
of thirty-five houses. See supra ¶ 18. She argues that, because her
property is “part of [SLC’s] established municipal service area,”
she is an inhabitant of SLC under Article XI, Section 6.

¶62 We reject Raty’s argument. First, an approved change
application authorizes, but does not require, the applicant to put
the water to the use described in the application. Utah Code
Ann. § 73-3-10(3)(b)–(c) (LexisNexis 2012) (“If the application is
approved, the applicant shall be authorized upon receipt of the
decision to . . . apply the water to the use named in the
application[] and perfect the proposed application.”). Only after
the applicant perfects the approved application will the state
engineer issue a certificate of appropriation. Id. § 73-3-17(1).
Until that happens, the applicant may withdraw the application,
or simply let it lapse. See id. § 73-3-17(4).

¶63 Thus, the approved change application “empowered”
SLC to supply Raty’s lot with water. Searle v. Milburn Irrigation
Co., 2006 UT 16, ¶ 23, 133 P.3d 382. But SLC’s ability to supply
water to the Albion Basin Subdivision does not amount to an
obligation to do so. See id.

¶64 Further, in Utah, a municipality’s decision to supply
water to nonresidents is permissive. Utah Code Ann. § 10-8-
14(1)(d) (LexisNexis 2015) (“A municipality may . . . sell and
deliver the surplus product or service capacity of [water works]
. . . not required by the municipality or the municipality’s

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inhabitants, to others beyond the limits of the municipality.”
(emphasis added)). And contrary to Raty’s arguments, SLC’s
decision to supply water to people beyond its city limits does not
create a constitutional obligation to serve all those within the
approved service area. See Platt, 949 P.2d at 328, 330
(determining that, although a municipality “is under no
obligation to provide water to nonresidents,” “municipalities
should act reasonably with their nonresident customers”).

¶65 Imposing such an obligation would be contrary to Article
XI, Section 6’s purpose of securing to municipal “communities
their water systems and [restricting] any sale or lease” to others
outside those communities. Genola Town v. Santaquin City, 80
P.2d 930, 935 (Utah 1938). We allow municipalities to sell surplus
water to avoid “shameful waste” when residents in adjacent
areas are in need and would otherwise be “compelled to go
without.” County Water System v. Salt Lake City, 278 P.2d 285, 290
(Utah 1954). But their primary focus should be “the development
and use of water for [the community’s] present requirements
and those reasonably to be anticipated in connection with the
expected growth of the city.” Id. And “because cities are
creatures of constant growth, prudent civic planning requires the
development and ownership of a water supply beyond present
needs.” Id.

¶66 In sum, because Raty’s lot is “beyond the limits of the
city,” forcing SLC to provide her lot with water under Article XI,
Section 6 would cut directly against that section’s purpose. See
Platt, 949 P.2d at 330 (quotation simplified). We therefore affirm
the district court’s dismissal of Raty’s counterclaim under Article
XI, Section 6.

B. Due Process

¶67 Raty argues the district court erred in dismissing her
claim seeking due process protection from SLC’s refusal to
supply her lot with water. Because Raty does not have a

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protectable property interest in receiving water from SLC, the
court properly dismissed this claim.

¶68 Article I, Section 7 of the Utah Constitution states, “No
person shall be deprived of life, liberty or property, without due
process of law.” Utah Const. art. I, § 7. To state a claim
under that clause, the plaintiff must “allege sufficient facts to
show a property or liberty interest warranting due process
protection.” Patterson v. American Fork City, 2003 UT 7, ¶ 23, 67
P.3d 466 (quotation simplified). And “[i]n order to have a valid
property interest in a state-created right, a plaintiff must have
more than a unilateral expectation of it; instead, the plaintiff
must have a legitimate claim of entitlement to it.” Id. (quotation
simplified).

¶69 Here, Raty bases her argument on the assertion that she
has a valid property interest in receiving water services from
SLC under Article XI, Section 6 of the Utah Constitution. But as
discussed above, SLC is not obligated to provide Raty with
water under Article XI, Section 6. Supra ¶¶ 58–66. At most, Raty
has a unilateral expectation of receiving water from SLC because
SLC is authorized to provide water in that area. But a unilateral
expectation is insufficient to create a protectable property
interest for purposes of Article I, Section 7. Patterson, 2003 UT 7,
¶ 23.

¶70 We therefore affirm the district court’s dismissal of Raty’s
due process claim because Raty failed to allege a property
interest warranting due process protection.

C. Equal Protection

¶71 Raty argues the district court erred in dismissing her
equal protection claim under Article I, Section 24 of the Utah
Constitution. We affirm the court’s dismissal of this claim.

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 Salt Lake City Corp. v. Haik

¶72 This section of the Utah Constitution states, “All laws of a
general nature shall have uniform operation.” Utah Const. art. I,
§ 24. This provision is meant to forward “the general principle
that persons similarly situated should be treated similarly, and
persons in different circumstances should not be treated as if
their circumstances were the same.” Horton v. State Ret. Board,
842 P.2d 928, 934 (Utah Ct. App. 1992) (quotation simplified).
“When persons are similarly situated, it is unconstitutional to
single out one person or group of persons from among a larger
class on the basis of a tenuous justification that has little or no
merit.” Malan v. Lewis, 693 P.2d 661, 671 (Utah 1984).

¶73 Raty raised her equal protection claim as a “class of one.”
To establish such a claim, a plaintiff must present “evidence that
the defendant deliberately sought to deprive [her] of the equal
protection of the laws for reasons of a personal nature unrelated
to the duties of the defendant’s position.” Brian High Dev., LC v.
Brian Head Town, 2015 UT App 100, ¶ 9, 348 P.3d 1209 (quotation
simplified). It is insufficient to allege an “uneven enforcement of
the law; what is required is a showing of a totally illegitimate
animus toward the plaintiff by the defendant.” Id. (quotation
simplified).

¶74 Here, Raty asserted that, because SLC provided water to
others outside its municipal boundaries, it unconstitutionally
discriminated against her by refusing to supply her with water.
Raty’s allegations are insufficient for various reasons. First, as
previously discussed, supra ¶¶ 58–66, a municipality “does not
have a legal duty to provide water service to all members of the
public.” Thompson v. Salt Lake City Corp., 724 P.2d 958, 959 (Utah
1986).

¶75 Further, Raty did not allege “a totally illegitimate
animus” toward her by SLC. See Brian High Dev., 2015 UT App
100, ¶ 9 (quotation simplified). Instead, she asserted that “claims
and defenses and contentions . . . over two decades demonstrate

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adversity between the parties,” and pointed to statements made
by SLC representatives expressing an intent to deny her water.
This evidence merely established that SLC did not intend to
supply Raty’s property with water, which it is not required to
do. At most, Raty alleged an “uneven enforcement of the law,”
and such evidence is insufficient to establish a class of one claim.
See id.

¶76 We therefore affirm the district court’s decision to dismiss
Raty’s equal protection claim.

D. Regulation by the Public Service Commission

¶77 Raty argues the district court erred when it dismissed her
claim seeking a declaration that SLC was subject to public
regulation as a utility. Because such regulation would be
contrary to Article VI, Section 28 of the Utah Constitution, we
reject Raty’s argument. See County Water System v. Salt Lake City,
278 P.2d 285, 291 (Utah 1954).

¶78 Article VI, Section 28 provides, “The Legislature shall not
delegate to any special commission, private corporation or
association, any power to make, supervise or interfere with any
municipal improvement, money, property or effects, whether
held in trust or otherwise, to levy taxes, to select a capitol site, or
to perform any municipal functions.” Utah Const. art. VI, § 28.
Raty acknowledges Utah Supreme Court precedent establishing
that SLC “is not subject to the jurisdiction or regulation of the
Public Service Commission” in distributing surplus water
beyond its corporate limits. County Water System, 278 P.2d at 291.
She nevertheless argues that SLC’s control of nearly all the
Creek’s water rights and use “presents need to re-examine the
exemption.”

¶79 We disagree. As the Utah Supreme Court has noted,
“whatever the considerations as to the wisdom of the city’s
being subject to regulation by the Public Service Commission

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may be . . . to allow the commission to exercise jurisdiction over
municipal property and the management thereof would be an
unconstitutional delegation of power to a special commission
forbidden by Article VI, Section [28].” Id. at 290. It is not the
responsibility of the courts to evaluate “what is more desirable
as a matter of policy.” Id.

¶80 We therefore agree with the district court’s conclusion
that it was “bound by” Utah Supreme Court precedent on the
issue. Accordingly, we affirm its decision to dismiss this claim.

CONCLUSION

¶81 SLC and the District had standing to bring their claim
seeking a declaratory judgment of Haik’s and Raty’s claimed
water rights, and the district court had subject matter
jurisdiction over that claim. The district court did not err in
granting summary judgment to SLC and the District on their
claims that Haik’s and Raty’s water rights were limited by the
1934 Agreement and had been forfeited by nonuse. The district
court also did not err in dismissing Raty’s counterclaims against
SLC. We therefore affirm the district court’s judgment on all
grounds.

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