OCR Text |
Show IMPORTANT JECISION By W. L. Cook The Supreme Court of Utah., has recently delivereda decision touching the irrigation question that is of vast importance to practically all the water wat-er users of Beaver River as well as to all other rivers, streams and water courses of the state. First for the reason that it involves the same issues is-sues as are involved in what is known as the Shepherd Case, which was recently tried in Beaver county; second because there were quite a number of similar cases on file in the various courts of the state, and innumerable in-numerable others in contemplation over the different water courses; and third because this is the first of the kind that has been brought before our Supreme Court; and also because it creates a new class of water cases within the state. The case in question is entitled "Amassa Rasmussen vs. Moroni Irrigation Irri-gation Company et al" which wa tri ed at Manti city by Judge Morris, at the request of Judge Christensen about a year ago. In this case it appeared ap-peared that Rasmussen, who was one of the pioneers of Sanpete county, diverted part of the waters of San-pitch San-pitch River onto the low lands adjacent ad-jacent to the river, and irrigated the same and raised crops for many years That at-the time of said diversion, the land was arid, and required irr'-I'ation irr'-I'ation lor the pr I - ction of -. In later years oUier parties divefod waters from th,i Sanpitch River on to higher lands, and seepage from which percolated through Rasmuss-en's Rasmuss-en's land and found its way into the Sanpitch River, and was c'gain appropriated appro-priated .y people lower lown the river. The seepage waterlogged and made boggy Rasmussen's land; so that he could not produce crops thereon. He then constructed drain through his land and collected large quantities of water, which he turned turn-ed into Sanpitch river and sought to use it on other lands than that from which it was taken to which the Moroni Irrigation company and others oth-ers objected on the ground that all the said seepage waters had been appropriated by parties lower down the river. The lower court decided that while Rasmussen had the right to drain his lands and use any of the waters so collected therefrom on the lands so drained, all the remainder of the seepage waters below, holding that these seepage waters was one of the sources of the river system as much so as surface streams running into the river. The Supreme Court in its decision confirmed the decision of Judge Morris Mor-ris in every particular using the following fol-lowing language: ''The decision of the District court is clearly right." and in summing sum-ming up the case they said: "To avoid, if possible, any misconception miscon-ception respecting the scope and meaning of this decision, we, in con elusion, feel constrained to remlnd-the remlnd-the reader that this case belongs to a class which is readily distinguishable distinguish-able from all other classes known as the law covering the subject of irrigation. ir-rigation. This case falls within what for convenience may be denominated, de-nominated, A River System Case'' which arises and can arise only in irrigating lands which lie along and within the water shed of a river, stream, or water course, whether nat ural or artificial, from which the seepage and run-off water arising from irrigation if not intercepted, will eventually return to the stream or water course from which it was originally appropriated by prior appropriated, ap-propriated, and diverted by them at some point further down the stream. str-eam. In such cases the rights of prior appropriators may not be in-trefered in-trefered with, not even by the owners of lands, through or underneath the: surface of which the seepage and ! percolating water passes on its return re-turn to the stream or river system The fact that the water in question may be percolating or seepage, as contradistinguished from wat.er flowing flow-ing is known and defined underground under-ground channels, does not alter the case. The Controlling question always al-ways is. was the water in question appropriated and put to a beneficial benefi-cial use by others before the interception inter-ception and attempted appropriation thereof by the land owners. We feel certain that we venture nothing saying that it is a matter of common knowledge that by far greater portion por-tion of irrigated lands in this state are included within the area of river riv-er systems. Notwithstanding that fact, however, this case, so far as we are aware is the first of its kind com ing to this court, and it is for that reason, as well as for others, which will readily suggest themselves, that we recognize the great importance of this decision. While the principles prin-ciples herein announced will of necessity nec-essity apply to all waters flowing within all river systems in this state they are nevertheless, not intended to apply to any other condition. Nor is this decision intended to apply to what are known as "artesian" or subterranean waters, the sources of which lie deep beneath the earth's surface. "From what has been said, it' follows, fol-lows, that the judgment should and It accordingly is affirmed, with cost to reupondsnU." |