Weber Basin Water Conservancy District v. Gailey

WADE, Justice

(concurring).

I concur with the prevailing opinion. However, I agree with the dissenting* opinion that under plaintiff’s pleadings the court has full authority to determine in this, action the question of the amount of damages which the defendant Bohman, appellant here, will sustain if and when the entire project is completed. This appeal, as pointed out in the prevailing opinion, seems to be limited to the right to prove damages which the appellant will sustain as the result of the operation of the canal, but if defendant so desires, I see no reason why he cannot enlarge his claim to recover such damages resulting from the operation of the entire project. Apparently appellant is satisfied to litigate his claim for damages resulting only from the operation of this canal.

The question to be determined is whether the defendant by his counterclaim states a claim upon which relief can be granted.1 If it shows that this canal, when completed and placed in operation, will take or damage appellant’s property for public use, then appellant is entitled to just compensation *389therefor.2 In substance appellant alleges that under the natural conditions, without the operation of this canal, the flow of the Weber River has the effect of subirrigating some of his lands so that crops will mature thereon without the use of artificial irrigation and that with the operation of this canal the waters which supply this subirrigation will be diverted away from its natural channel and destroy the subirrigation of his lands and thereby make it necessary for appellant to level his lands and acquire an irrigation water right and use it for irrigating his lands thereafter. These allegations, although subject to dispute, are not so unreasonable that we can hold as a matter of law, without hearing his evidence, that they are untrue. If the allegations are true then it is clear that his property will be seriously damaged by the operation of this canal and under the constitution and statutory provisions he is entitled to recover such damages. I see no reason why he is not entitled to his damages under these alleged conditions just the same as he would be if he had established a water right to irrigate such lands by appropriation and beneficial use, which would be destroyed by the operation of this canal.

Appellant’s claim for damages is not defeated by the fact that he did not acquire the right to subirrigate his land by appropriation, diversion and beneficial use, nor by the fact that this state does not recognize riparian rights. If he can establish that in the past he has received natural benefits from the subirrigation of his land, which the future operation of this canal will deprive him of, the damage to his property for a public use will thereby be established. Even the dissenting opinion, by implication, agrees that if his right to subirrigate his land has been acquired by diversion, appropriation and beneficial use he would be entitled to his damages. His property is nonetheless damaged if he is deprived of such subirrigation because of the fact that his right thereto resulted from natural causes. It is a strange contention that he can be deprived of this right of subirrigation which results from natural causes but cannot be deprived of such right if it has been established by his own efforts for the damage to his property would be the same in both cases. Neither our statutes nor constitutional provisions justify such a distinction. Such a doctrine would require the landowner with natural subirrigation of his land to drain his land and divert other water thereon in order to establish his right to subirrigate his land.

The contention in the dissenting opinion that recognition of this claim requires a holding that appellant is entitled to waste large quantities of water is incorrect. Appellant makes no claim that this project may not utilize all of this water, he merely *390claims that he is entitled to just compensation if the project deprives him of the beneficial use of the water which subirrigates his land. It is well established in this state that percolating waters, to the extent that they confer a benefit upon the land are a part of and belong to the owner of the soil and are not public waters of the state nor subject to appropriation.3

In Riordan v. Westwood,4 we noted that this court has always recognized that percolating waters are not public waters but are a part of the ground through which they pass and belong to the owner thereof, with well-recognized exceptions to such rule none of which have a bearing on our problem in this case. We also noted that in recent years our concept of what are percolating waters has undergone great change. We pointed out that this is not a part of the riparian rights doctrine but to some extent is contrary thereto. We emphasized the importance of using all available water in the arid states and that the landowners should not be disturbed in a beneficial use of water on their lands whether such use results from an appropriation and diversion or from natural causes and held that water which subirri-gates land through natural causes and thereby produces a beneficial result to'the land by sustaining plant life is a part of the soil even under our changed conception of what constitutes percolating waters and is not subject to appropriation, saying:

“If such were not the case then there would be much meadow land and other lands that are so situated that they are naturally sub-irrigated through percolation from higher grounds which could be appropriated and drained and the waters carried onto the land of strangers even though the use of such waters on the lands in accordance with their natural course would be much more beneficial and economical than it would be if diverted from their natural course onto the lands of others. If such waters are public waters and subject to appropriation then it would be impossible for the owner of the land on which they appear to make the appropriation for use on his lands in their natural state because such use does not require an artificial diversion or use which is required in order to obtain the right to the use of waters by appropriation. It would also mean that every land owner who has a naturally wet place on his land would have to make application to appropriate such waters and unnecessarily divert the water from its natural course in order to preserve his right to the use thereof even though it would be more economical and beneficial to *391allow it to proceed in accordance with nature/

In the Riordan case we relied on Adams v. Portage Irr.,5 which held that the owner of land on which a spring arose had a right to continue to water his livestock and to satisfy his domestic use for sheep camps from such spring although he had made no diversion of such water and required the appropriators of such stream who proposed to pipe the water off the land where the spring arose to establish a stand pipe and watering troughs so that the landowner could enjoy the use of such water in accordance with his previous practice.

On the question of what constitutes a taking or damaging of private property for public use we have held that a change in the grade of an adjoining highway and the building of a viaduct in the adjoining street inflicted compensable damages to the property of the adjoining landowner.6 Clearly, if such cases caused actionable damage to adjoining property the building of a public project so that others may use water which subirrigates an adjoining owner’s land and thereby deprives such adjoining owner of the beneficial use of such water is a com-pensable damage to such land. There can be no question but that this project is for a public use.

. See Utali Rules of Civil Procedure, Rule 12(b).

. Art. I, See. 22, Utah Constitution says: “Private property shall not he taken or damaged for public use without just compensation.”

. See the lengthy discussion of this question in Riordan v. Westwood, Utah, 203 P.2d 922, 924-929.

. See note 3 above,

. See Adams v. Portage Irr., 95 Utah 1, 72 P.2d 648.

. See Webber v. Salt Lake City, 1911, 40 Utah 221, 120 P. 503, 37 L.R.A.,N.S., 1115; State by State Road Commission v. District Court, Fourth Judicial District, 94 Utah 384, 78 P.2d 502.