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Show PERCOLATING WATERS 651 channels, where water was subject to loss by evaporation and seepage, did not constitute waste. Utah Originally, Utah followed the rule of absolute ownership of percolating waters.168 This rule was abandoned in 1921 in favor of correlative rights.169 Early in 1935, the Utah Supreme Court, in two opinions,170 indicated that all ground waters might be subject to prior appropriation. Thereupon the legislature amended the State's appropriation laws to include all ground water. Before discussing the statute it should be noted that ground waters on public lands in Utah have always been subject to appropriation.171 Rights to use unappropriated public waters may be acquired only by following the procedures provided by the Code.172 Applications to appropriate waters are made to the State Engineer,173 who then publishes notice thereof.174 An application may be denied if, among other things, it will interfere with more beneficial use for various specified purposes or will be detrimental to the public welfare.175 If, in the State Engineer's judgment there is sufficient unappropriated water available, he may issue a temporary permit to drill a well, but this does not dispense with publication of notice.176 When an application is endorsed as approved, the applicant may proceed with his works.177 Priority of appropriation ordinarily is based on the concept of first in time, first in right.178 The Utah act is silent on the status of withdrawals made before 1935. However, in Hanson v. Salt Lake City}19 the court ruled that actual application of the water to a beneficial use by these prior users without permit was sufficient to establish their priority. Any questions as to the legislative intention to include percolating waters under this statute were resolved in Riordan v. Westwood,180 wherein the court announced that the intention 168See Sullivan v. Northern Spy Mining Co., 11 Utah 438, 40 Pac. 709 (1895) (dictum); and Herriman In. Co. v. Keel, 25 Utah 96, 69 Pac. 719 (1902). 169Home v. Utah Oil Refining Co., 59 Utah 279, 202 Pac. 815 (1921). ll0Wrathall v. Johnson, 86 Utah 50, 40 Pac. (2d) 755 (1935); and Justesen v. Olsen, 86 Utah 158, 40 Pac. (2d) 802 (1935). 171 Snake Creek Mining & Tunnel Co. v. Midway In. Co., 260 U.S. 596, 67 L.Ed. 423 (1923). '"Utah Code Ann. § 73-3-1 et seq. (1968). 173 Utah Code Ann. § 73-3-2 (Supp. 1969). 174Utah Code Ann. § 73-3-6 (1953). llsId. § 73-3-8. 116Id. § 73-3-5. 111 Id. § 73-3-10. 178Id. §§ 73-3-1 and 73-3-21. "'Hanson v. Salk Lake City, 115 Utah 404, 205 Pac. (2d) 255 (1949). is0Riordan v. Westwood, 115 Utah 215, 203 Pac. (2d) 922 (1949). |
