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Show 767 domestic purposes without unnecessary waste shall have preference over all other uses, and that agricultural purposes shall have preference over all other purposes except domestic use.848 If the holder of an appropriative right abandons or ceases to use the water for a period of five years, the right ceases; but the holder may be granted extensions of time by the State Engineer, upon a showing of reasonable cause for nonuse of the water, after publication of the application and hearing of protests.849 The statutory procedure is the exclusive method of appropriating water in Utah. There was some question as to this as the result of a statement made in 1935 in the prevailing opinion in Wr at hall v. Johnson,850 even though that statement appears to have been dictum; but shortly after the rendering of that decision, the legislature amended the appropriation statute to provide explicitly that no appropriation of water could be made and no right to the use thereof initiated other- wise than in the manner provided in the statute.851 The Utah Supreme Court stated in 1948, with reference to a use of water first made in 1925 or 1926, that at that time the only way in which the right of use could be initiated was by filing an application with the State Engineer, and the only way in which the water could be appropriated was through the statutory procedure.852 And in 1949 the court stated that the 1935 amendment, "enacted immediately after the Wrathall decision and undoubtedly with this holding in mind, leaves no doubt that thereafter no right to the use of the unappropriated public waters of this state can be acquired without complying with the statutory requirements."853 The question as to whether title to a water right might be acquired solely by adverse use, or after abandonment by a prior appropriator without making a new statutory appropriation, also was the subject of controversy;854 and again the legislature acted by providing that the statute relating to abandonment or forfeiture of the appropriative right should be applicable whether the unused or abandoned water is per- copy of a contract for the payment of royalties to the State: Utah Code Ann. 1943, § 100-3-8. The enforcement of this requirement with respect to an application to appropriate water from Great Salt Lake for the purpose of recovering salt was approved by the supreme court: Deseret Livestock Co. v. State, 110 Utah 239, 243-245, 171 Pac. (2d) 401 (1946). 848 Utah Code Ann., 1943, § 100-3-21. 848 Utah Code Ann., 1943, § 100-1-4. 860 Wrathallv.Johnson, 86 Utah 50, 108-120,40 Pac. (2d) 755 (1935). 851 Utah Laws 1935, ch. 105; Utah Code Ann., 1943, § 100-3-1. 852 Smith v. Sanders, 112 Utah 517,520,189 Pac. (2d) 701 (1948). 863Hanson v. Salt Lake City, - Utah -, 205 Pac. (2d) 255, 260 (1949). See also Riordan v. Westwood, - Utah -, 203 Pac. (2d) 922, 927 (1949). 8MHammond v. Johnson, 94 Utah 20, 28-33, 66 Pac. (2d) 894 (1937), 94 Utah 35, 39-40, 75 Pac. (2d) 164 (1938); Adams v. Portage Irr., Res. & Power Co., 95 Utah 1, 16, 72 Pac. (2d) 648 (1937), 95 Utah 20, 21-22, 81 Pac. (2d) 368 (1938). 911611-51------50 |
