Hanson v. Salt Lake City , 115 Utah 404 ( 1949 )

I agree with the results and concur in much of what is said in Mr. Justice WOLFE'S preliminary discussion. However, I find myself unable to concur in the reasoning of the prevailing opinion.

Mr. Justice WADE, in this decision, sets forth most of the facts concerning this litigation. There are, however, other facts which I believe to be important to my decision, and I, therefore, not only emphasize some of the facts mentioned by Mr. Justice WADE, but supplement those given by him with others that I believe should be stated.

From his statement of facts, it will be observed that approximately 6,000 wells have been driven in what is designated as the Jordan River Valley underground water basin. According to the estimate of Dr. Marsell, a recognized Professor of Geology, the average flow of all wells in the area is 19 gallons per minute. This basin is approximately 12 miles north and south by 6 miles east and west. It is sealed on three sides by impervious strata, but on the north side, there is an outlet which permits the waters of the basin to escape into Great Salt Lake. According to the information given by Dr. Marsell, a volume of water of not less than 165 cubic feet per second, is wasted by being permitted to escape through this outlet. It is the opinion of Dr. Marsell that the basin is not fully developed, and that all the water will not be beneficially used until such time as the flow from additional wells in the area is sufficient to use the water that now escapes through the northern outlet. It is his further opinion that the use of the water now going to waste can be obtained without injury to the present well users, except as each new well may reduce the static head in the wells then in use.

I see no reason to disagree with Mr. Justice WADE'S statement of the law as it exists in the state at the present time, and I concede that under previous holdings of this court, a prior appropriator of artesian water has been protected in the amount of water appropriated and beneficially used by him. However, I believe that under present conditions, the doctrine announced inJustesen v. Olsen, 86 Utah 158, 40 P.2d 802, should be limited to those cases where the prior appropriator is using a reasonable means to divert his water.

All authorities agree that when a new well taps the waters of an underground artesian basin, it lowers the pressure and reduces, in some degree, the flow of every other well drawing water from the cone of influence. The record in this case shows that the flowing of the Salt Lake City well directly affected some of the wells within a distance of 2 1/2 miles and undoubtedly reduced the pressure throughout the whole basin. If such is the case, then any well subsequently sunk in this artesian basin would interfere with the rights of all other well owners.

The effect of Mr. Justice WADE'S decision is to require the subsequent appropriator to do one of three things for all prior appropriators who have suffered any loss of pressure. These are: Sink the wells deeper, furnish equipment for pumping, or furnish to each the amount of water that has been taken away. In this particular basin, the cost to adopt any one of these methods, would be prohibitive. In many instances, the amount of diminution would be slight, but the principle announced would require the subsequent appropriator to maintain the pressure for, or get water to all prior appropriators. The cost of equipment or the impossibility of transporting small quantities of water great distances, would prevent the subsequent user from being able to comply with such requirements.

Mr. Wells A. Hutchins, in his book, "Selected Problems in the Law of Water Rights in the West," analyzes the cases from western jurisdictions and has this to say about the appropriation of ground water. I quote from page 168:

"The circumstances surrounding the diversion of ground waters make the question of protection of the method of diversion more important to the water user than is generally the case when he diverts from a surface stream. Ground waters, to be made available for use, must be brought to the surface from depths which range from a few feet to hundreds of feet. Unless the ground water is under pressure sufficient to raise it naturally to the surface, pumping must be resorted to, and the cost of equipment and power for pumping increases with the height to which the water must be lifted, that is, it increases with the depth at which the water table stands during the period of pumping. Each additional draft on the ground-water supply tends to lower the level of the water table, and in case of artesian water (ground water under pressure), each additional well results in some lowering of the height to which the water will rise naturally in the well. Consequently, as development in a ground-water basin progresses, the earliest users find it necessary to deepen their wells, install larger pumps, and use more power to raise a given quantity of water to the surface than was the case when they first began to use the ground water. The question arises as to what protection, if any, the first user is afforded in maintenance of the conditions under which he first began to divert the ground water, or as to whether he is entitled to compensation for the additional cost of pumping if later claimants are to be permitted to share the common water supply."

This quotation emphasizes wherein I disagree with the conclusions reached by Mr. Justice WADE. It is my belief that the development of artesian water in this state has reached a point where we should only protect the prior appropriator when his means of diversion are reasonable and consistent with the state of development in the area in which he obtains his water.

I concede that this court has held that an original appropriator from a stream or surface of water has a right to continue the method of diversion which he adopts. See Salt LakeCity v. Gardner, 39 Utah 30, 114 P. 147, 149. This principle has also been held to apply to underground water, but I believe this is the first time it has been challenged under a state of facts which indicate that the means of appropriation may not be reasonable.

Quoting again from Mr. Hutchins' work on page 172, he makes the following statement:

"In the California, Oregon, and Federal decisions the facts of which are above outlined, perpetuation of the particular methods of diversion insisted upon would have been unreasonable in their effect upon later appropriations and not in the public interest. The other decisions all upheld the right to a reasonable method of diversion; none of them sanctioned the continuance of a method which was unreasonable in relation to other appropriators under the circumstances involved; and it is noteworthy that certain decisions intimated that the junior appropriator, where the senior appropriative diversion was considered reasonable, might be allowed to solve the situation at his own expense. Where an appropriator's method of diversion is reasonable, in the light of all the circumstances including long-established customs in the community, it is doubtful if he would be required, in many jurisdictions, to submit to substantial expense to accommodate junior appropriators. As will be noted in the discussion of reasonableness of an appropriative right, in chapter 6, a method of diversion and use that is reasonable at one time or in one place may not be reasonable at another time or in another area."

If the principle of requiring the prior appropriator to use a reasonable means of diversion is not applied in this particular case, we have a situation where an appropriator of water can sink a well and obtain a flow of 50 gallons per minute and literally require approximately 74,250 gallons per minute to be wasted. To further emphasize the waste that confronts us in this case I desire to point out that plaintiff uses a large part of the water for the purpose of lifting a smaller part to the top of a silo by means of a ram. All of the water which is used to operate this ram is permitted to run off of plaintiff's land and may be wasted. There is some intimation in the record that some other parties might use this water but no evidence is found in the record dealing with necessity or use by any other user. Be that as it may, a large volume of water will be permitted to go to waste if plaintiff is entitled to have the water level and pressure maintained so as to assure his flow of 50 gallons per minute. I believe it inadvisable to throw a cloak of protection around a right that can be corrected by a small expenditure by the owner when the cloak chokes off the expansion and development of the state's resources. We are not confronted with a state of facts like those existing in Wrathall v. Johnson, or Justesen v. Olsen. In those matters only a limited number of appropriators were involved. Under those conditions it might be concluded that a prior appropriator could rely solely on pressure for delivery of his water. If we, however, change those facts to the ones existing in the present case, we see a reason for modification of this rule. Here we have six thousand well owners in a large populated area, some two-hundred thousand residents of Salt Lake City and many more in the county are dependent upon an adequate water supply, the population of the county is increasing rapidly, further expansion is expected and water is scarce. From these facts I conclude that an appropriator in this basin should not be entitled to rely on pressure alone when other methods can be used at little expense.

Mr. Thomas G. Thompson of the United States Geological Survey, makes the following statement concerning the endangering of the supply of the prior appropriator:

"Another important fact, which is not generally appreciated, is that, as stated by Mr. Conkling under `Administration: Underground Water,' it is impossible to take water from any well either by natural flow from an artesian well in which the static head is above the surface, or by pumping from wells in which it is below the surface, without causing a drop in head, or static level, beneath the territory surrounding the well. Theoretically, this drop in head should extend ultimately to the outermost borders of the ground-water body under consideration. The loss of head resulting from the withdrawal of water from several wells if within the cones of influence of each other, may be significant in amount over a large area, perhaps many square miles. Some loss of head cannot be avoided even if the quantity of water withdrawn is only a small part of the total safe yield of the aquifer; and if a considerable part of the safe yield is to be obtained in some regions there must be a considerable loss of head. It should be distinctly understood, however, that loss of head does not necessarily mean that the permanency of a well owner's supply is endangered. * * *"

The facts of this case should be considered with this principle in mind. When the plaintiff's supply of water was decreased by operation of the city pumps at capacity, he still had four to five gallons of water flowing out of the faucet of his well. No complaint is made that water was not available or that the supply was endangered. Plaintiff's only complaint is that he was deprived of the pressure necessary to obtain the same quantity he had before. The issue concerns only free delivery of the water. Reduced to its simplest form the question is: In a highly developed metropolitan area, can an early appropriator insist, not only that he is entitled to the quantity of water he has always obtained, but can he, to the exclusion of all subsequent appropriators, insist on his means of diversion regardless of the fact that the progress and development of the area has rendered his means outmoded and unreasonable? I think not.

I appreciate the fact that my holding has a tendency to deprive the prior appropriator of the results of his development. However, it is not as harsh as it first appears. Had the plaintiff in this case, when he drilled his well in 1921, been faced with the necessity of maintaining the pressure in the artesian basin, or furnishing prior appropriators with additional equipment, he would have been unable to obtain his water. Undoubtedly, his well released some of the pressure existing in the basin at that time.

If we are to protect the prior appropriator under all circumstances, then the prior appropriator can require damages from every subsequent appropriator and each subsequent appropriator in turn, can require damages from all subsequent appropriators, until the last one would have to pay tribute to all. If the waters of the Jordan River Basin are to be utilized to the fullest extent, then it must be recognized that some lowering of the water table or static head will result when each well is drilled; and that such a result cannot be avoided if use is to be made of the water now going to waste. If the present appropriators of artesian water have the right to retain the pressure now present in the basin, then I see no escape from the conclusion that in the future, it will not be economical and feasible to drill wells in this basin.

Moreover, unless we adopt the principle that prior appropriators must use reasonable means of diversion, I am unable to determine how the State Engineer can carry out the functions delegated to him by the 1935 Legislature. He is authorized to permit citizens of this state to appropriate unappropriated waters and under the evidence of Dr. Marsell, there exists a minimum of 165 cubic feet per second of unappropriated water in this basin. If the State Engineer must require subsequent appropriators to pay tribute to all prior appropriators of water in the area, then we cannot reasonably expect newcomers to assume this burden.

The record does not convince me that the method of diversion used by the plaintiff in this case is reasonable under the facts and circumstances. I, therefore, feel that the cost of making his diversion reasonable should be borne by him and not by the city. He should be protected in the quantity of water he has appropriated and is beneficially using, but I believe that even though his original means of diversion may have been reasonable, it now should be changed to one consistent with the developments in the area, and that he should be required to assume the additional costs imposed on him by virtue of the changed conditions.