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Show UTAH 731 part of the watercourse.120 Water which is part of a watercourse does not lose its identity when it floods or overflows the channel, unless it spreads over the country and forms ponds, or finds another out- let.121 In one early decision the Utah court ruled that the owner of higher ground was entitled to have diffused surface water drain by natural means onto the land of a lower landowner, but was not entitled, by artificial means, to increase or concentrate the natural drainage so as to increase the burden on the lower landowner.122 However, in a recent decision, the Utah Supreme Court announced that the rights of landowners would be governed by the reasonable use rule.123 Under this rule a landowner is allowed to obstruct or divert natural upland drainage in order to make a reasonable use of his property so long as he does not act negligently and does not cause unreasonable damage to adjoining property. During extraordinary flood conditions, the owner of land has the right to take protective measures by the erection of defense barriers without liability for the resulting damage to another's land, provided these barriers are not constructed in a negligent manner and do not obstruct the flow of the natural channel.124 The landowner has no inherent right to use diffused surface water by virtue of his ownership of the land, and it seems that the right to use diffused surface water is governed by the appropriation statutes. The Utah court has made sweeping declarations that the appropriator's right extends to all waters of the watershed which would ultimately find its way to the watercourse.125 4. Ground Water In early ground water decisions in Utah, ground water was broadly classified as: (1) Water flowing in definite underground streams, (2) the underflow of surface streams, and (3) percolating water, which comprised all ground water not included in the two previous categories. Since the amendment of the Utah water law in 1935, all ground water within the State, with one minor exception noted below, is subject to the appropriation doctrine and the above distinctions or classifications are no longer of any particular signifi- cance.126 A. SITUATION PRIOR TO 193 5 Although the present procedure for acquiring rights to water apply equally to both surface and ground water, this has not always been the case in Utah. Ground water has had a different history. Ground water, flowing in what the Utah court has characterized as definite underground streams and the underflow of surface streams, has consistently been held to be subject to the appropriation doctrine.127 vxMcKeil v. Spanish Fork City, 6 U. 2d 92, 305 P. 2d 1097 (1957). 121McKe11 v. Spanish Fork City, 6 U. 2d 92, 305 P. 2d 1097 (1957). 122 North Point Consolidated Trr. Co. v. Utah Salt Lake Canal Co., 16 Utah 246, 52 Pac. 168 (1898). 1238anford v. University of Utah, 26 U. 2d 285, 488 P. 2d 741 (1971). 12tMcKeU v. Spanish Fork City, 6 U. 2d 92, 305 P. 2d 1097 (1957) ; Jordan v. Mt. Pleasant, 15 Utah 449, 49 Pac. 746 (1897). vsRichlands Irr. Co. v. Westview Trr. Co., 96 Utah 403. 80 P. 2d 458 (1938). 126 Hutchins and Jensen, The Utah Law of Water Rights, 93-94 (1965). 127 Chandler v. Utah Copper Co., 43 Utah 479, 135 Pac. 106 (1913). |
