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Show 566 OTHER WATERS AT THE SURFACE entitled to its use. This rule is based upon the general equity concept that he who invests time and funds in such a project is entitled to receive the fruits of his labor.8 The question for the court to determine in such cases is whether additional water was in fact made available for use and, if so, in what quantity.9 The burden of proof rests upon the party claiming to have salvaged water to prove that his proposal will, in fact, effect a saving.10 Similarly, the person claiming to have developed water in close proximity to a fully appropriated source of supply has the burden of proving that he is not intercepting water which supplies the prior rights. It is a well recognized rule of law in this arid region, that where as in the case at bar, a party goes upon a stream, the waters of which have been appropriated and put to a beneficial use by others, and drives a tunnel into the mountain or watershed drained by the stream, and immediately under or in close proximity to the stream collects water which he claims to be developed water, he must make satisfactory proof that such water is in fact "developed water."11 The Utah Supreme Court has held that as the burden of proof rests upon the party claiming to have developed water, he will be required to bear the expense of employing a water official to obtain information to prove his claim,12 and that the same rule applies where it is necessary to have measurements taken of the water supply to determine the amount of developed water, if any, produced.13 It is important to note the proviso that attaches to the right of the salvager and the developer to take the water he salvages or develops, that in doing so he is not infringing the prior rights of others. The reason for the rule is simply that, if one who is entitled to use a given quantity of water at a given point gets such use, he may not complain of any prior use which does not impair the quality or diminish the quantity of the water to which he is entitled.14 In other sSanta Cruz Res. Co. v. Rameriz, 16 Ariz. 64, 70-71, 141 Pac. 120 (1914), dealing with salvaged waters. See chapter 9 at note 269 regarding a 1966 opinion of the Arizona Court of Appeals, subsequent to this 1914 opinion of the Arizona Supreme Court, regarding the question of conserved water. The 1914 opinion was not mentioned in the 1966 opinion which discussed different considerations and took a somewhat different approach to the question of conserved water. 9Mt. LakeMin. Co. w.Midway Irr. Co., 47 Utah 346, 361, 149 Pac. 929 (1915). 10Howcroft v. Union & Jordan Irr. Co., 25 Utah 311, 71 Pac. 487 (1903). 11 Mt. Lake Min. Co. v. Midway Irr. Co., 47 Utah 346, 360, 149 Pac. 929 (1915). See also Peterson v. Wood, 71 Utah 77, 85, 262 Pac. 828 (1927); Silver King Consol. Min. Co. v. Sutton, 85 Utah 297, 306, 39 Pac. (2d) 682 (1934). l2Silver King Consol. Min. Co. v. Sutton, 85 Utah 297, 39 Pac. (2d) 682 (1934). 13Bastian v.Nebeker, 49 Utah 390, 400, 163 Pac. 1092 (1916). "Pomona Land & Water Co. v. San Antonio Water Co., 152 Cal. 618, 622-624, 93 Pac. 881 (1908). |
