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Show UTAH 749 the surface of the ground and whether flowing or not, to be public property subject to the existing rights of the use thereof."398 With one exception, which will be subsequently discussed, the appropriation doctrine under current appropriation procedures, is applicable to all ground water flowing in defined channels,399 existing in artesian basins,400 or merely seeping and percolating through the soil.401 Certain Percolating Waters Excluded From Appropriation Doctrine The Riordan decision402 delineated the one exception to the otherwise all-inclusive language of the above statute. The court stated that those ground waters diffused and percolating through the soil near the surface, sustaining beneficial plant life on the property owner's land without artificial diversion and having no course traceable onto the lands of others, are considered part of the soil and not public property subject to appropriation. Current Procedure for Appropriating Ground Water The procedure for acquiring a right to use unappropriated water in Utah is the same regardless of the supply involved. The Utah Code expressly provides that all rights must be initiated by filing an application to appropriate in the Office of the State Engineer.403 This procedure has been exclusive since 1935. In January of that year, the Utah Supreme Court, in the case of Wrathall v. Johnson?0* announced that the appropriation doctrine was applicable to the waters of an artesian basin. This decision and that of Justesen v. Olsen, which closely followed it (also involving artesian waters),405 held by inference that in the future the appropriation doctrine would be applied to all waters. Following these announcements by the court the legislature amended sec- tion 73-1-1 making it applicable to all water whether above or in the ground. Section 73-3-1 was amended to provide that no appropriation could be ac- quired except that it be initiated by filing an application in the Office of the State Engineer.406 In discussing the Wrathall case and the amendments to these sections, the Utah court, in Hanson v. Salt Lake City, stated, "Immediately following that 39tRiordan v. Westwood, 115 Utah 215, 224, 203 Pac. (2d) 922 (1949). 399Little Cottonwood Water Co. v. Sandy City, 123 Utah 242, 258 Pac. (2d) 440 (1953). A00Hanson v. Salt Lake City, 115 Utah 404, 205 Pac. (2d) 255 (1949). *01Riordan v. Westwood, 115 Utah 215, 203 Pac. (2d) 922 (1949). Also see Bullock v. Tracy, 4 Utah (2d) 370, 294 Pac. (2d) 707 (1956). 401Riordan v. Westwood, 115 Utah 215, 203 Pac. (2d) 922 (1949). 403Utah Code Ann. § 73-3-1 (1968). 404 Wrathall v. Johnson, 86 Utah 50,40 Pac. (2d) 755 (1935). 405 Justesen v. Olsen, 86 Utah 158, 40 Pac. (2d) 802 (1935). 406Utah Laws 1935, ch. 105, § 1, amending Rev. Stat. §§ 100-1-1 and 100-3-1 (1933), now Code Ann. § § 73-1-1 and 73-3-1 (1968), respectively. |
