OCR Text |
Show 754 GROUND WATER RIGHTS IN SELECTED STATES In 1959, the Utah court held that a prior appropriator of ground water through the beneficial use of natural springs and artesian wells was entitled to restrain subsequent appropriators from lowering the static head pressure of the underground basin unless they replaced the quantity and quality of the water and bore the cost of replacement.433 In the 1959 case, section 73-3-23 of the Utah statutes, granting the right of replacement to a junior appropriator where his use diminishes the quantity or quality of a prior groundwater appropriator's right,434 was interpreted as the legislative expression of this same concept which the court was bound to enforce. Replacement is made at the sole expense of the junior appropriator and the right of eminent domain is granted for this purpose. No replacement may be made without approval of an application by the State Engineer. A 1969 case involved Murray City, which had changed its diversion from old wells to a new well, as approved by the State Engineer under section 73-3-3 of the statutes. This section enables changes in the place of diversion or purpose of use, if no vested right is impaired, without compensation. The Utah Supreme Court said that "the trial court as authorized under Sec. 73-3-23, provided that Murray City 'must at [its] sole cost permanently replace to the plaintiffs water in amount and quality equal to the level of their prior use.' "435 However, the Supreme Court required that this be modified. Among other things, the court stated: * * * there has come to be recognized what may be referred to as the "rule of reasonableness" in the allocation of rights in the use of underground water. This involves an analysis of the total situation: the quantity of water available, the average annual recharge in the basin, the existing rights and their priorities. All users are required where necessary to employ reasonable and efficient means in taking their own waters in relation to others to the end that wastage of water is avoided and that the greatest amount of available water is put to beneficial use. ? * * * We perceive nothing in our statutory law inconsistent with this "rule of reasonableness" just discussed, nor which compels a con- clusion that owners of rights to use underground water have any absolute right to pressure. On the contrary, when our statutes are considered in the light of the policy considerations herein dis- cussed, it seems more in harmony with the major objective of the law to conclude that the means of diversion must be reasonable and consistent with the state of development of water in the area and not such as to abort the declared purpose of the law of putting all available water to use.436 '"Current Creek Co. v. Andrews, 9 Utah (2d) 324, 344 Pac. (2d) 528 (1959). 434 Utah Code Ann. § 73-3-23 (1968). 435 Wayman v. Murray City Corp., 23 Utah (2d) 97, 458 Pac. (2d) 861, 864 (1969). 43t458 Pac. (2d) at 865-866. The court, inter alia, approvingly quoted from Colorado Springs v. Bender, 148 |