Show L U P H E E COUR T IVES IT 5 DECISION oin application in ill state engineers office f cc before beloro water I 1 N use V cd k elsei livi c gh c applicant certain cert t ain rights ri slits A decision of more than passing in interest terest to farmers and stock men of 0 utah was rendered by the supreme court on oil the isali instant in fit the case of robinson vs schoenfeld robinson as plaintiff brought suit stilt against schoenfeld as defendant to quiet the title to the th water of two t 0 small springs located upon the public domain in kane county one known as sheep springs and the other as a tom robinson springs the plaintiff rented re ted his claim to the right to the use of a part of said water upon the allegations that lie ho and his predecessors in interest had for more than twenty years prior to the commencement of the action used a certain portion on of the water for stock watering purposes the supreme court states that while robinson robins owned a larger number n i unson of cattle watering at these springs than the number of other cattle watering there that other cattle upon the same lange iange frequented these springs and drank indiscriminately and the court holds that such a use of wa water ter does doe not constitute an appropriation n of tile the same under the law and in support of its position quotes its holding in another utah case entitled lake shore duck club vs lake view duck club et al N wherein herein the court said but for the purpose of effecting a valid appropriation of 0 water under the statutes of this state we are of the opinion that the beneficial use contemplated tem teni templates plated in ill making the appropriation must be one that inures ingres to the exclusive benefit of the aud and subject to his complete dominion and control hence it would appear from this ut the ourt that gerardes of the length of time on ona nav hai hnyp P watered vat ered cattle at a I 1 spring upon the public domain such I 1 a one doe not ther thereby elv acquire a to the use of waters provided other peoples cattle have watered concur concurrently and indiscriminately indiscriminate lv at such spring in other words that a right to the us of water eater must be an exclusive richt to be a right that th law will recognize the evidence further showed i that when the plaintiff that the waters of the springs were more than sufficient to water his cattle lie undertook to pipe waters naters of thes rings away and carry them down into a trait tract 0 of land which he contemplated setting out to orchard but that lie he did not complete his appropriation in this manner by actually applying the water to the land that lie he intended to irrigate thereby prior to the time that the defendant defenda nt had filed an ail application with the state engineer to appropriate prop said water and therefore the court holds in substance that if one applies for water in due form to the state engineer that regardless of how long it may take tahe him to apply the water to the use contemplated by him provided lie he does apply it to such use within the time granted by the state engineer that such an appropriation dates from the time of filing his application in the state engineers office by reason of the doctrine of relation whereas in the case of one undertaking to acquire a right to tile the use ot of water by simply taking it and using it without applying for the same through the state engineers office such as does not have the benefit of the doctrine of relation and that the time of the latter appropriation dates from the actual application of the water to the purpose tor lor which it was appropriated in this case the defendant had filed an application with the state engineer prior to the time that the plaintiff had actually applied the waters to the land and hence the ilie supreme court holds in substance that in case he perfects his application through the state engineers office it will be regarded as a prior appropriation to that of the plaintiff even though his application to the state engineer might have been mado made at a date subsequent to the time when the plaintiff began to divert the waters without having first applied to the state engineer for the same the trial court in the case held that mere tiling filing of an application in tho the state engineers office would x not give the applicant a standing in court whereby he could defend against claims of one who alleged the ownership of the water through a prescriptive right but on oil this point the supreme court holds that tile trial court erred and in stating its view uses this language tile the posting and regarding of notice as required by the statute prior to 1903 or filing an ail application in the state en engineers engin gi n e errs rr 0 office effic e gives the applicant an incomplete or inco hate liate right which the claimant can defend in a court of law speer v stephenson 16 la ia merritt v city of los angeles pac 1064 G l see also kinney on oil irrigation and water rights sees continued on page S supreme court coart I gives decision on water rights rig dom page 1 the filing of the aPpl applications icat 0 15 I 1 1 in n t the he office of the state engineer did not give the defendant tile the right to have an adjudication that he owned or had the right to use the waters in conflict but such filing did assure him the ille right to defend ills his right against the claims of plaintiffs in other words the fact that defendant had filed hib application and that those filings ere in good standing could be offered in evidence aga against ills t the claim for an all injunction against defendant to restrain him from in any way interfering with the waters of the springs spring the judgment of the lower cm court was reversed and the cause geniau remand ed to the district court of kane county lor for further proceedings N J bates appeared as counsel couns f for plaintiff and respondent in all case and hayes haves heppler heppl e r f for or d del e fondant and appellant |