OCR Text |
Show 624 OTHER WATERS AT THE SURFACE the Utah courts was that a spring arising on private property was owned by the owner of the soil and not subject to appropriation, even though the water flowed into a natural channel.315 However, legislation in 1935 made these waters subject to the appropriation doctrine.316 A spring on private property, producing water in excess of existing rights, is subject to appropriation; and the applicant is entitled to obtain a right of way from the landowner in order to proceed with his appropriation.317 An application to appropriate water was held not void where the applicant, in good faith, trespassed upon the lands of another to appropriate the surplus waters of a spring in the belief that the land was part of the public domain.318 Spring on the public domain. -Prior to 1903, a right to spring water located on the public domain could be established by simply diverting the water and putting it to beneficial use, and could be acquired even by a trespasser if he had taken possession of the property.319 It was not necessary to own the land on which the spring was located to acquire a water right from the spring located thereon.320 The person who subsequently acquired the property where the spring was located took it subject to existing rights.321 An acquisition of title to public lands does not vest the owner with any title to the springs located on such lands. Since 1903, rights to these spring waters can be established only by means of a valid appropriation. Until this is accomplished, the general public has equal rights to use the spring.322 Furthermore, in order to perfect a right to waters of a spring located on the public domain, the user must show that he has appropriated the water to his exclusive benefit. His use on public lands in conjunction with the public at large is not sufficient to vest the water right in an individual.323 Spring tributary to a watercourse. -Springs supplying a natural stream are a part of the stream; the prior appropriator is entitled to the tributary spring waters. Should it develop upon the taking of further evidence that there are springs and seeps of water arising in the bed of the reservoir 3I5M//ow Creek In. Co. v. Michaelson, 21 Utah 248, 60 Pac. 943 (1900); Peterson v. Eureka Hill Min. Co., 53 Utah 70, 176 Pac. 729 (1918); Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 38, 239 Pac. 479 (1925). 316Utah Laws 1935, ch. 105, Code Ann. § 73-3-1 (1968). 311Dalton v. Wadley, 11 Utah (2d) 84, 355 Pac. (2d) 69 (1960). 316Riordan v. Westwood, 115 Utah 215, 232, 203 Pac. (2d) 922 (1949). 319Patterson v. Ryan, 37 Utah 410, 108 Pac. 1118 (1910). 320Munsee v. McKellar, 39 Utah 282, 116 Pac. 1024 (1911). 321Holman v. Christensen, 73 Utah 389, 395, 274 Pac. 457 (1929); Thomas v. Butler, 77 Utah 402, 276 Pac. 597 (1931); Geary v. Daniels, 50 Utah 494, 167 Pac. 820 (1917). 322Deseret Livestock Co. v. Sharp, 123 Utah 353, 360, 259 Pac. (2d) 607 (1953). 323Robinson v. Schoenfeld, 62 Utah 233, 218 Pac. 1041 (1923); Patterson v. Ryan, 37 Utah 410,108 Pac. 1118 (1910). |