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Show 750 GROUND WATER RIGffTS IN SELECTED STATES decision the legislature amended the old statutes and enacted provisions which clearly showed that it was intended from then on that in order to acquire the right to use underground waters those statutory provisions must be complied with."407 Prestatutory Procedure for Appropriating Percolating Ground Water In both the Wrathall and Justesen cases, the court announced that diversion and beneficial use of waters from an artesian basin prior to 1903 was all that was necessary to establish a right. Prior to this time, the court reasoned, there was no statutory procedure requiring the initiation of a water right by filing an application with the State Engineer and rights could be established by appro- priating the water to a beneficial use. In the Hanson case,408 the court was presented with the question of the procedure for establishing a right to ground water, specifically artesian waters, subsequent to 1903 but prior to 1935. It concluded that although the 1903 statute required the initiation of new rights by filing an application with the State Engineer, the legislature did not intend this procedure to be exclusive prior to the 1935 amendment to the statutes. Thus, it was held in the Hanson case that rights to use ground water prior to 1935 could be acquired by diverting such waters from their natural source and placing them to a beneficial use. Priority dated from the first use. The statutes provide that rights estab- lished in this manner may be recorded by filing a claim in the Office of the State Engineer.409 The diversion and application to a beneficial use must have been accom- plished by the effective date of the 1935 amendment.410 The matter of inten- tion is unimportant under the 1935 amendment. This statute contains no provision allowing rights to be perfected which were initiated prior to the amendment as was allowed by the 1903 statute relating to surface waters.411 Extent of Existing Rights Limited to reasonable beneficial use. -In a statutory determination of water rights412 in a ground water basin, the Utah court reiterated the concept that beneficial use constitutes the basis, the measure, and the limit of any water right in the state.413 Affirming the trial court's fixing of a temporary duty of 407Hanson v. Salt Lake City, 115 Utah 404, 205 Pac. (2d) 255 (1949). 409 Utah Code Ann. § 73-5-13(1968). 410Goodwin v. Tracy, 6 Utah (2d) 1, 304 Pac. (2d) 964 (1956). 411 Utah Laws, ch. 100, § 72 (1903). 41sUtah Code Ann. § 73-4-1 et seq. (1968). 413/n re Water Rights of Escalante Valley Drainage Area, 10 Utah (2d) 77, 348 Pac. (2d) 679,681 (1960). |
