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Show .FOCUS 10E (From 90 Years Ago ... From The Wasatch Wave May 13. 1890 WATER RIGHTS We will return to the laws of our territory in regard to water rights. The provisions of Sec. 7 are somewhat peculiar; the section is as follows: 278.Sec. 7. A secondary right to the use of water for any of said purposes is hereby recognized and acknowledged to have vested and accrued (subject to the perfect and complete use of all primary rights) to the extent and reasonable necessity for such use thereof, under any of the following circumstances: 1. Whenever the whole of the waters of any natural stream, water course, lake, spring or other natural source of supply has been taken, diverted and used by prior appropriators for a part, or parts, of each year only; and other persons have subsequently appropriated any part of the whole of such water during any other part of such year, such person shall be deemed to have acquired a secondary right. 2. Whenever, at the time of any unusual increase of water exceeding seven years average flow of such water, at the same season of each year, all the water of such average flow then being used by prior appropriators and other persons appropriate and use such increase of water such persons shall be deemed to have acquired a secondary right. As was shown in our last issue the courts have decided that when a prior appropria-to- r has diverted and used waters of a stream for certain portions of a year and a subsequent appropriator appropriates the water for the remainder of the year or a portion thereof, the subsequent appropriator stands in the legal position of prior appropriator, to the extent of his right in reference to the first or prior appropriator. Therefore, we cannot see where the secondary right comes in except in name, under the first subdivision of this section. The second subdivision March 26-Apr- il 1, 1981 The Archives seems to us to be vague and equivical. The only real meaning is an unusual season of high water, or a person can prove that it exeeds the average flow, as that season of the year, for the past seven years, he is entitled to such overplus if he can put it to some beneficial use. Such then would it be right. The only case in which this right could be of any use to a person would be in case of sudden, permanent, increase of the waters of a stream or at least, permanent or that certain portion of each year which is not a supposable case. This secondary right then is a myth a delusion. It has been usually consider- ed that under this sub- division of section 7 a person could secure what is usually known as a high water right but from the wording of the statute we cannot see how. |
