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Show 12 STATE WATER POLICIES The question of waste of water. -Unnecessary waste of water generally has no rightful place in the water use economy of the West. Said a Federal court: "As a general principle, equity abhors waste, and delights to restrain it in a proper case."68 To waste water is to injure the public welfare; hence, it is the undoubted policy of the law to prevent its waste.69 "Let it be remembered that no one can acquire a vested right to waste water in any form."70 These and other declarations of the Utah courts as to the State policy of encouraging development of precious waters and preventing wastage thereof71 undoubtedly reflect the public policy of that State. This is in accordance with the water policies of the other arid States, despite what the author believes to have been an inadvertent generalization in a dictum that appears in two other opinions of the Utah Supreme Court.72 The strictures apply essentially to unnecessary waste.- In the operation of diversion and distribution systems, it is impracticable to save every acre-foot of water. Some so-called waste is inevitable, depending quantitatively on the surrounding circumstances. Because of practical considerations, therefore, the inhibition against waste of water means unnecessary waste, which is not tolerated in the State policies relating to beneficial use of water. The constitution of California absolutely forbids waste of water, and declares that it is not included in a right of use.73 However, the supreme court of that State says that as denounced by the constitutional amendment the term is necessarily relative,74 and that the question as to what is waste of water depends upon the circumstances of each case and the time when the waste is required to be prevented.75 68Finney County Water Users' Assn. v. Graham Ditch Co., 1 Fed. (2d) 650, 652 (D. Colo. 1924). 69 Brian v. Fremont In. Co., 112 Utah 220, 224-225, 186 Pac. (2d) 588 (1947); Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 247, 289 Pac. 116 (1920). 70Eden In. Co. v. District Court, 61 Utah 103, 113, 211 Pac. 957 (1922). 71 See also Yates v. Newton, 59 Utah 105, 110, 202 Pac. 208 (1921); Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 197, 203, 220-221, 159 Pac. (2d) 596 (1945), 174 Pac. (2d) 148 (1946). 72 The opinion in Adams v. Portage In., Res. & Power Co., 95 Utah 1,11,72 Pac. (2d) 648 (1937), says in effect that in Utah private waters (as distinguished from public waters) are not only subject to exclusive control and ownership, but may be used, sold, or wasted. A dissenting opinion in In re Bear River Drainage Area, 2 Utah (2d) 208, 216, 271 Pac. (2d) 846 (1954), included this passage in an extensive quotation from the Adams opinion. Obviously, an acknowledgment that water may be wasted is squarely in conflict with the many declarations in Utah concerning conservation of water and the public necessity of preventing waste. It is not a correct statement of the Utah law of water rights. Undoubtedly, it was made inadvertently. As a matter of fact, the writer of the dissenting opinion in Bear River declared, before making this quotation, that water is the life of an arid State such as Utah and that the right to its use must be carefully guarded and perpetually regulated to achieve the greatest good therefrom. 73Cal. Const., art. XIV, § 3. 74Meridian v. San Francisco, 13 Cal. (2d) 424, 447, 90 Pac. (2d) 537 (1939). lsPeabody v. Vallejo, 2 Cal. (2d) 351, 368, 40 Pac. (2d) 486 (1935). |
