Tanner v. Bacon, State Engineer , 103 Utah 494 ( 1943 )

I concur. But in view of the nature of this action, and the arguments made therein, I deem it proper to add some further reasons for my concurrence than are stated in the opinion of Mr. Justice WADE.

While there are many assignments of error, they may be summarized in three questions: (1) Was the judgment of the District Court in reversing the action of the engineer on his first rejection of Tanner's application and reinstating it, merely an adjudication of Tanner's right to have his application approved so he could proceed with developmen work, or was it an adjudication of the rights to appropriate and all objections that might be urged thereto?

(2) Has the engineer the right and power to determine whether public welfare will be better subserved by the appropriation of water for one beneficial use than by its appropriation for different beneficial uses?

(3) Can an application to appropriate water be rejected because a different use in futuro may seem more beneficial?

By his complaint Tanner seeks to set forth a plea of res adjudicata, alleging the first rejection of the application and the action thereon in the District Court. The pleadings in that action are not set forth, neither are the findings of fact, the conclusions of law, nor the judgment and decree, but it is alleged that "said rejection was made upon the specific ground that the waters involved had been withdrawn from appropriation." This appeal being on the judgment roll, we cannot examine the record, nor the judgment roll of the former case. The court in the instant case made two findings of fact with respect to the former trial. Those findings are not assailed, and we must conclude therefore that they are sustained by the evidence. Finding No. 5, after finding that the action was commenced, reads:

"* * * that at the time of the trial of said action the plaintiff and the defendant made a stipulation by the terms of which it was agreed that, for the purpose of that suit and in order to raise an issue as to whether the water involved had in fact been withdrawn from appropriation, there was unappropriated water in Provo river at the proposed point of diversion, that the proposed use would not interfere with existing rights and would not interfere with any more beneficial use of the water sought to be appropriated, and that the same would not be detrimental to the public welfare; that thereafter the court in said cause made and entered its decree providing for the reinstatement of said application in the office of the State Engineer with its original priority; that the said judgment was not intended as an adjudication of the issues raised by the answers of the defendants herein, but was intended only as an adjudication of the validity and effect of certain proclamations withdrawing water from appropriation;"

And Finding No. 26 contains this:

"* * * a judgment was rendered and entered June 4, 1928, in which it was adjudged and declared that said proclamation was null and void in so far as plaintiff's application herein was concerned;"

This is all we have before us with reference to the claim of res adjudicata. Let us assume, without deciding the point, that the pleadings were sufficient to raise the issue of res adjudicata. The burden is then on the party who seeks to avail himself of the former judgment as an adjudication of the subject matter to prove the judgment, and the fact that the point or question as to which he claims estoppel by the judgment was actually or necessarily in issue and decided in the prior action; or was necessarily involved and decided in determining the real issue in such action. 30 Am. Jur. 996, 997. If the judgment relied upon was rendered in an action involving several issues of fact, but is ambiguous and uncertain as to which of the several issues was the one determined in arriving at the decision, it must be shown upon which issue the judgment was based, or the judgment does not constitute a conclusive adjudication as to any of them. Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58,49 L.Ed. 193. And where a judgment recites a finding on one issue which compels a judgment for one party, and is silent as to the rest, the latter in the absence of further showing will be held open to inquiry in future litigation. 30 Am. Jur. 998; Hudson v. Remington Paper Co., 71 Kan. 300, 80 P. 568, 6 Ann. Cas. 103. The question is as to whether the same issue was involved in each case. That is generally a matter of law for the court, based upon an examination of the judgment roll of the former action, although resort may be had to the entire record of that action.State of Oklahoma v. Texas, 272 U.S. 21, 47 S.Ct. 9,71 L.Ed. 145; United Shoe Mach. Corp. v. United States, 258 U.S. 451,42 S.Ct. 363, 66 L.Ed. 708; Young v. Byrd, 124 Mo. 590,28 S.W. 83, 46 Am. St. Rep. 461; Sprague v. Adams, 139 Wn. 510,247 P. 960, 47 A.L.R. 529. But where a dispute exists, because the record is not clear as to whether the question involved in the second suit was involved in the first, and extrinsic evidence may be needed, there may be factual situations to be determined. 30 Am. Jur. 994. In the instant case the court was judge of both law and fact, and it determined that the former action was not a determination of any matters involved in this action. Since neither the judgment, the judgment roll, nor the stipulation or evidence is before us, we must conclude that the finding of the trial court in that regard was correct.

The waters of all streams in this state are the property of the public, subject to all existing rights to the use thereof. Section 100-1-1, R.S.U. 1933. Beneficial use is the measure and limit of all rights to the use of water. 100-1-3, R.S.U. 1933. Rights to the use of unappropriated public waters may only be acquired by appropriation as provided by statute, 103-3-1, R.S.U. 1933. No private rights to the use of water, initiated since the adoption of the state constitution, can be acquired except in the ways recognized by the law, and subject to the limitations thereby imposed. Due to the limited supply of water and its importance to the people of the State, it has wisely been provided that this resource shall be so used as to best subserve the needs of the people and the development of the state, to the end that no one shall acquire a dominating right to such use of water as will retard the maximum development of the state's resources, or curtail the satisfaction of the people's needs in the things most important to their sustenance, development and happiness. The section directly involved, Sec. 48, Chap. 67, Laws of Utah 1919, provides (Sec. 100-3-8, R.S.U. 1933, U.C.A.):

"All applications * * * shall be filed * * * and it shall be the duty of said engineer * * * to approve all applications where the proposed use will not impair the value of existing rights, or will not interfere with the more beneficial use of said water; * * * where the State Engineer, * * * has reason to believe that said application to appropriate water will interfere with the more beneficial use for irrigation, * * * or will prove detrimental to the public welfare, it shall be the duty of the State Engineer to withhold his approval or rejection of such application until he shall have investigated the matter. * * * Where there is no unappropriated water in the proposed source of supply, or where the proposed use will conflict with prior applications or existing rights, or where the approval of such application would in the opinion of the State Engineer interfere with the more beneficial use for irrigation, domestic or culinary purposes, stock watering, power or mining development, manufacturing, or would prove detrimental to the public welfare, it shall be the duty of the State Engineer to reject such application."

It is the duty of the engineer to (a) approve certain applications, and (b) to disapprove certain applications. The engineer must determine therefore whether a given application falls in class (a) or class (b). The distinctions between the two classes are set out in the part of the statute quoted. The first two tests are determined upon the consideration of existing facts — the existence of unappropriated waters, and the extent of conflict with existing rights. The other two tests cannot be resolved by the determination of an existing fact. They have to do with future events, developments and policies, and must therefore be resolved by the judgment of some body as to what the probable effects will be.

The matter of interference "with the more beneficial use" or being "detrimental to the public welfare" must of necessity refer to uses or appropriations proposed or likely to be proposed in the future, that is, to probable uses or application to appropriate or use, of a date subsequent to the application under consideration by the engineer. If such were not the case, the clauses would be meaningless, for all prior applications come under the protection of the second test: "Conflict with prior applications or existing rights." Where a matter is of such moment and serious public concern as water is in this state, and is property of the public, it properly is declared not subject to private rights or claims except to the limited extent provided by law, in the uses which shall be deemed most beneficial to the public welfare, as contradistinguished from the benefit of the individual. Since all waters flowing in natural streams in the state are the property of the public, no one has an inherent or vesed right to appropriate it to a private use. Under the limitations provided by law, one may acquire certain rights to the use thereof, including diversion from the natural channels, but only as such uses may be deemed in the public benefit. Only in the way recognized by law can private rights to water vest in any one. The state, as trustee for the people, must so administer its trust as not to permit its misuse, or its use in any way adverse to the interests of the public. So the state engineer and the court are made the guardians of the public welfare in the appropriation of the public waters of the state, and this necessarily involves a large discretion in such matters. If the public welfare demands, they may grant a qualified and limited right of appropriation and in the beneficial use of the water so appropriated. Kirk v. StateBd. of Irrig., 90 Neb. 627, 134 N.W. 167; East Bay MunicipalUtil. Dist. v. Dept. of Pub. Works, 1 Cal.2d 476,35 P.2d 1027; Young Norton v. Hinderlider, 15 N.M. 666,110 P. 1045; Farm Investment v. Carpenter, 9 Wyo. 110, 61 P. 258, 50 L.R.A. 747, 80 Am. St. Rep. 918; In re Commonwealth Power,94 Neb. 613, 143 N.W. 937. "More beneficial use" means more beneficial to the public; means better subserving the public welfare. Such question must be determined by consideration of existing conditions; of the need for the various or contemplated possible uses; of the probable effects of such uses in satisfying or ministering to the public needs; of the relative urgency and importance of public needs which would be satisfied by the different uses; and the probable effect on the public order, morale, and welfare by one use in preferance to another. The weighing of such matters in the balance and the determination thereof must of necessity be vested in some official body. The state has seen fit to vest it in the engineer for the purpose of determining whether the application should be filed to initiate a right. But at the behest of any interested party vests the final determination of both facts and law in the District Court. The statute not only vests in the engineer the power to determine whether the public welfare will be better subserved by one use of water than another, when an application to appropriate is before him, but makes it his duty to determine such matter, for the purpose of determining if the application should be filed and the applicant permitted to proceed and make an appropriation if he can do so. His determination is in every case subject to a re-examination upon the merits on a trial in a plenary action, in the District Court, in the exercise of its original jurisdiction. Issues may there be framed, covering all issues which were or which could have been before the engineer, or any other which the plaintiff thinks would help or strengthen his cause. The court does not review the judgment of the engineer but in the exercise of its original jurisdiction hears and determines the matter on the merits, on pleadings and issues raised in the court, independent of any issues, or action thereon, before the engineer.

It is contended that if the engineer has such power it is void as a delegation of legislative power, since there are no standards or guide posts set up by the legislature to guide the engineer in determining which use is more beneficial, or what is detrimental to the public welfare. Be it noted that the engineer, in passing upon applications to appropriate water, is not in the same position as most administrative boards. No conclusion, finding, or action of the engineer in approving or rejecting an application to appropriate water is final or binding upon any party who may feel aggrieved thereby, except as to the right of the applicant to have his application filed, and thereby fix the time of his priority, if he proceeds and completes or perfects an appropriation. Resort may be had to the District Court by the applicant, or by any protestant, and the whole matter is then tried on the merits, on pleadings and issues framed in the court. The District Court does not review the action of the engineer, and affirm or reverse that action. It hears the evidence of the parties on all issues properly made by the pleadings, and makes its own original determination of facts and law without reference to any action the engineer may have taken. And the court's judgment is conclusive and mandatory in form. It does not affirm or reverse, but directs the engineer to take certain specific action. The judgment of the court then fixes the rights of the parties with respect to the application. Such was done here, and it is the judgment of the court which Tanner seeks to have reviewed and reversed as to the judgment here attacked, which is an original judgment of the court. It matters not whether standards are fixed to guide the judgment of the engineer. It is not the action or judgment of the engineer, nor any proceeding before him that we are asked to review. It is an original judgment of the District Court that is before us on this appeal. The matters of standards for the guidance of the engineer cannot affect the judgment of the District Court rendered on the merits. The necessity of legislatively fixed standards to measure and guide the action and judgment of administrative officials does not apply to the courts, the judiciary. That applies only to administrative bodies to which it is claimed legislative power has been delegated.

This appeal being on the judgment roll from the District Court, we must assume the findings of fact are supported by the evidence. They are within the issues formed by the pleadings. The conclusions of law are sustained by the findings of fact, and the judgment accords with the conclusions of law. I therefore concur in affirming the judgment.