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Show Local ) Water Vater Case Wntes Writes WntesHistory WritesHistory WritesHistory History for State of UtahOne Utah UtahOne One of the mo most < ; t far reaching reachmg opin opinlons opinions opinions lons ions ever handed down do\\n do n \ by the state statesupreme statesupreme statesupreme supreme court affecting affectmg lavis Ia"s Ias laws " per pertalning pertaming pertaining talning taming to water rights became ef of effectie offestive effective fecti\e fecti e festive \ Wednesday " when "hen hen the court courtdenied courtdenied courtdenied denied a petition for a rehearingThe rehearingThe rehearing rehearingThe The court declared one private privatewater privatewater privatewater water user may acquire the right of ofanother ofanother ofanother another by diverting and using his hisw hiswater w \ a ater ter for a period of seven j yearsThe sears years searsThe ears earsThe The opinion oplmon represents an en encroachment encroachment encroachment croachment upon the doctrine doctrme en enunclated enunciated enundated unclated unciated m 111 in the case of Deseret DeseretLivestock DeseretLivestock DeseretLivestock Livestock companys company , vs Hooppiani HooppianiIn in which wluch itas It was \\as as \ held that water waterrights waterrights waterrights waterI I I rights may be initiated only in m the theay theway theway \\ay ay way \ provided by statute namely namelyby namelyby namelyby by filing filmg an applicatIonlth application \ with \\lth lth the thestate thestate thestate state engineer engmeer engmeerThe engineerThe engineerThe The ruling ! In the latest case saidState said saidState saidState State Engineer T H Humpherys Humpherysdefeats Humpherysdefeats Humpherysdefeats defeats the Intention of the leg legISlature legislature legislature ISlature to establish an office for forthe forthe forthe the preservation and maintenanceof mamtenanceof mamtenance maintenance of records ofVater of \ water \Vater Vater rights rlghts ObvIous ObvIously Obviously Obviously ly the state engineers engineer s office would wouldhave wouldhave wouldhave have no means of knowing kno\\ing kno ing \ about aboutthe aboutthe aboutthe the acquisition of water rights rlghts by byunauthorized b byunauthorized Y Yunauthorized unauthorized and surreptitious sUlTepUtlous useof use useof useof of ofatel w \ watel \\atel atel atei ateiThe watelThe atelThe The court also held the statute statuteplOvldIng statutepeovideng statutepioviding plOvldIng peovideng that upon abandonment abandonmentor or nonuse of water for a period of offive offive offive five years sears j ears the right shall shaIl cease and andthereupon andthereupon andthereupon thereupon such water shall shaIl levert revert levertto revertto i evertto to the public has no appl1catlon application appl1catlonI appl1catlonunle applicationunless applicationunless unle unless s < : the water goes to v.asteThe wasteThe . waste v.aste vaste wasteThe I The case in m which the court ruledIs ruled ruledI ruledis ruledis I is that Boyd S Hammond vs J H HJohnson HJohnson HJohnson Johnson et al all of Moab and andmvolves andinvolves andinvolves mvolves involves the v . waters aters of Barber Barbersprlng Barberspring Barberspring sprlng spring a a . tributary of Pack creek creekhlch creekwhich creekwhich \\hlch hlch which \ flows flo\\s flo s \ through Moab vaIley valley vaIleyThe valleyThe valleyThe The spring rises on Mr Hammond s sranch sranch sranch ranch Some 40 years ago Judge JudgeJachob JudgeJachob JudgeJachob Jachob Johnson issued I"sued Isued " a deciee declee decree ad adJudic'1.ting ad3udic adjudiciting Judic'1.ting Judic1.ting Judic1ting 3udic ' . sting the water giving three-tenths three tenths three- three threetenths threetenths - tenths of the spring sprmg to the Barber BarberHammond BarberHammond BarberHammond ( Hammond ) ranch and seven tenths to and otherranchers ' ranchers located on Poverty Flat Flatin Flatin Flatin in upper tWPCr Moab valley This decree decreea a couple of years ago was affirmed affirmedby affirmedby affirmedby by Judge Dilworth , Woolley ! in n the theHammond theHammond theHammond Hammond Johnson case From FromJUdge FromJudge FromJudge JUdge WooIIey's WooIIeys WooIley's WooIleys Woolley's Woolleys ' ' ' opinion opl11lon the plain plain- plaintiff plaintiff plaintiff - tiff appealed to the supreme court courtand courtand courtand and this v . weeks eek s opinion is the out outcome outcome outcome come of this appeal The majority majorityopmion majorityopinion majorityopinion opmion opinion in both the original ruhng ruling ruhngand rulingand rulingand and that on the petition for rehar reharing reharmg reharing ing mg was written by Justice Martin MartinM MartinM : MartinM M Larson and was concuned concurIed concurred in by byJustices byJustices byJustices Justices D W Moffat and Ephraim EphraimHanson EphraimHanson EphralmHanson Hanson A dissenting opinion waswritten was waswritten waswritten written by Justice James H Wolfe Wolfeand Wolfeand Wolfeand and concurred ! In n by Chief JUstice JUsticeWllham JusticeWilliam JusticeWilliam Wllham William H Folland'From Folland'From Folland From 'From ' ' Attila AttiIa the Hun down downthrough downthrough downthrough through the colonial colonla1 expansions of ofthe ofthe ofthe the seventeenth and eighteenth cen centuries centunes centuries turies tunes to the present the majority majorityopinion majorityopinion majorityopinion opinion said the right of one with withsu1iclent withsufficient withsufficient su1iclent sufficient ! nerve and courage to extend ex extend extend tend his lus dominions by the simple simpleprocess simpleprocess simpleprocess process of taking possession possesslon has hasbeen hasbeen hasbeen been recognized recogruzed subject only to togrowing togrowing togrowing growing and more definite and re- re refined refined re refined - fined methods and requirements of ofmanifesting ofmanifesting ofmanifesting manifesting the possession and the theIntention theIntention theintention Intention to take and holdExplaming holdExplaining hold _ Explaining Explaming the effect or of or the opin- opin opinion opinion opin opinion - ion as he sees It Mr Humpheryasaid HumpheryasaidFor Humpherys Humpheryssaid Humpheryssaid said saidFor For illustration lIIustration under the rule ruleof ruleof ruleof of the Johnson case if A had used usedVoater usedwater usedwater Voater water from say Provo rovo river rher 01 or some other source for 60 years and andhis andhis andhis his water right has been decreed decreedby decreedby decreedby by jurisdiction a court of competent jurisdic jurisdic- - tion and B a stranger without any anyauthority anyauthority anyauthority authority from A or anyone elseuses else elseuses elseuses uses A As Aswater s -water water - openly , . notoriously notoriouslycontinuously notoriouslycontinuously notoriouslycontinuously continuously and ad\ ad ads adversely aderseIy \ erseIy ersely for sev seven seven seven en years B has by his wrongful act actacquired actacquired actacquired acquired rightIn 'As As ' water right In his dissenting opinion Justice JusticeWolfe JusticeWolfe JusticeWolfs Wolfe said ; a 8 rehearing should be begrp.nted begrunted begranted grp.nted grpnted grunted . to determine whether title titleto titleto titleto to a 8 water right may be obt.ained obtained obt.ainedagainst obtainedagainst obtainedagainst . against an anjone anyone } one by adverse possession posses possession possession sion sion . , . He expressed serious serlOUS doubt as asto asto asto to whether whetller a person could obtain obtam 'v v ' \ 'vright ' iright right as distinguished from lands landsby landsby landsby , by adverse possession . . r _ |