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Show 406 LOSS OF WATER RIGHTS IN WATERCOURSES whatsoever, but any such right to appropriate any of such water shall be initiated by first making application to the state engineer for a permit to appropriate the same as provided in this chapter and not otherwise.782 (4) Utah. In the late 1930's, the relationships of abandonment and forfeiture to adverse use in connection with title to Utah water rights were in a state of considerable uncertainty.783 In 1939, the Utah Legislature took action by so amending the water appropriation statute as to prevent the acquisition of a right to the use of water already appropriated by another, solely by adverse use. To this end, the general statement of the exclusive method of appropriating water by first making application to the State Engineer in the manner provided in the statute, and not otherwise, ends with the declaration, "No right to the use of water either appropriated or unappropriated can be acquired by adverse use or adverse possession."784 In addition, the statutory forfeiture section includes the following sentence: "The provisions of this section are applicable whether such unused or abandoned water is permitted to run to waste or is used by others without right."785 In the opinions in a number of subsequent cases, the Utah Supreme Court has noted that since this enactment, it is no longer possible to acquire a right to use of water in Utah by adverse possession and use.786 However, after the 1939 legislation was enacted, a period of uncertainty ensued as to whether title by adverse possession could have been acquired between 1903 and 1939. Prior to 1903, when the legislature provided for an exclusive method of appropriating water, the Utah law was well settled that title could be acquired by adverse use. What, then was the situation between 782 In a 1961 case, the Franktown Creek Irrigation Company contended that it had acquired a prescriptive water right before the enactment of this statute in 1949. In this regard, the Nevada Supreme Court said inter alia that "To establish a right by prescription in Franktown [Irrigation Company] before 1949 to the use of water claimed by the predecessor of Marlette, the use and enjoyment must have been uninterrupted, adverse, under a claim of right, and with the knowledge of such predecessor." Franktown Creek In. Co. v. Marlette Lake Co., 11 Nev. 348, 364 Pac. (2d) 1069, 1071 (1961). 783Clark v. North Cottonwood In. & Water Co., 79 Utah 425, 437, 11 Pac. (2d) 300 (1932); Hammond v. Johnson, 94 Utah 20, 28-33, 35, 39-40, 66 Pac. (2d) 894 (1937), 75 Pac. (2d) 164 (1938); Adams v. Portage In, Res. & Power Co., 95 Utah 1, 11-16, 20, 21, 72 Pac. (2d) 648 (1937), 81 Pac. (2d) 368 (1938). 784Utah Laws 1939, ch. Ill, Code Ann. § 73-3-1 (1968). ltsId. § 73-1-4. lt6Smith v. Sanders, 112 Utah 517, 520-521, 189 Pac. (2d) 701 (1948); Jackson v. Spanish Fork West Field In. Co., 119 Utah 19, 31, 223 Pac. (2d) 827 (1950); Mitchell v. Spanish Fork West Field In. Co., 1 Utah (2d) 313, 317, 265 Pac. (2d) 1016 (1954); In re Drainage Area of Bear River in Rich County, 12 Utah (2d) 1, 5-6, 361 Pac. (2d) 407 (1961);/n re Use of Water Within Drainage Area of Green River, 12 Utah (2d) 102, 105-106, 363 Pac. (2d) 199 (1961). |