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Show 432 APPROPRIATION OF WATER So far as ascertained, the Utah provision for preference without compensa- tion has not been construed by the supreme court.1003 In one case the court observed that the Utah statute did not include this rule of preferences for the express guidance of the State Engineer in rejecting or approving applications, as the California statute had done. But, said the court, it did indicate clearly that the legislature considered these two purposes as the most beneficial uses to which water may be applied.1004 An important feature of the development of the Utah law of appropriative water rights was the classification of "primary" and "secondary" water rights. This prevailed for nearly 40 years. It was finally eliminated in the 1919 statutory revision.1005 An effect of this primary-secondary classification was to group earlier appropriators into one class and later ones into another class. In two of the laws, the average flow at low-water mark was a controlling factor. The 1897 law provided that all appropriators of water from streams, springs, and lakes up to "their average flow at low water mark" should be "deemed equal in rights to, the said waters, according to their vested rights;" secondary rights, as described in the 1880 legislation, were to be recognized, subject to "prior rights."1006 Related old Utah statutory provisions, court decrees, and agreements regarding prorata divisions of streamflow measured by fractional parts or percentages of flow, are discussed above under "Statutory-Inadequacies of the Preadministrative Procedure-The Utah experience." Statutory recognition of 1003 The current version of the statute had the attention of the court in a decision concerning the water rights implications of allowing livestock to drink directly from a stream. But this had no bearing on relative rights of use, because the livestock owner had made no appropriation of the water: Bountiful City v. DeLuca, 11 Utah 107, 118-119, 292 Pac. 194(1930). 1004 Tanner v. Bacon, 103 Utah 494,507-508, 136 Pac. (2d) 957 (1943). 1005 Utah Laws 1880, ch. 20, §§ 6 and 7; Laws 1897, ch. 52, §§5 and 6; Laws 1903, ch. 100, § 72; Laws 1919, ch. 67, § 10. 1006 Utah Laws 1897, ch. 52, § § 5 and 6. Mead, Elwood, "Irrigation Institutions" p. 228 (1910), stated that: "The law of 1880 defined two classes, primary and secondary rights. Primary rights include all rights acquired up to the time when the sum of the rights equals the average flow of the stream at low-water stage. Secondary rights are rights acquired to any supply in excess of the average low-water flow, and are subject to the complete enjoyment of primary rights. Whenever there is not water enough for all primary rights, the flow of the stream is divided among them pro rata. When there is more than enough for the primary rights, but not enough for all secondary rights, the excess over the primary rights is divided among the secondary rights pro rata. The law carries the classification no farther, but numerous court decrees have divided the rights into more than two classes. In adjudicating the rights on the upper section of the Provo River in 1899 the court divided the rights into ten classes, on the same basis as the primary and secondary rights defined in the law." |
