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Show 722 UTAH reenacted into what is today a broad and comprehensive water code. The current Utah statutes provide that all water in the State, whether above or under the ground, is the property of the public and that rights to use the unappropriated public water can only be acquired by filing an application to appropriate. This statutory pro- cedure is now the exclusive method of appropriating water. Applica- tions to appropriate are filed in the office of the State engineer, and unappropriated water may be acquired for any recognized beneficial use. Subject to compliance with the statutory procedure for perfect- ing a water right, an application has priority as of the date it was filed in the State engineer's office.49 Water may be appropriated for use by others as well as use by the applicant.50 The State engineer may receive and approve an application from an interstate stream for use in a border state, provided that State has reciprocal legislation which permits the appropriation of water in that State for use in Utah.51 (2) Constitutionality of procedure The constitutionality of the current procedure has been upheld by the Utah Supreme Court. The court declared that it was within the power of the State to vest the control, diversion, and distribution of water in the State engineer, with his decisions being subject to re- view by the court.52 (3) Procedural steps An appropriation is initiated by filing an application to appro- priate. Applications may be filed by persons, associations, corpora- tions, and jrablic agencies.53 The Utah court has ruled that water may be appropriated by a trespasser where he believed the area involved was public domain and not private property.54 Upon receipt of an application by the engineer, he causes notice to be published in the county where the point of diversion is located, and protests against the application may be submitted within 30 days following the last publication date. If a protest is filed, the application is set for hear- ing by the State engineer.65 (Jf,J Criteria for approval Before approving an application, the State engineer must find that (a) there is unappropriated water in the source, (b) the pro- posed use will not impair existing rights or interfere with the more beneficial use of water, (c) the proposed plan is physically and eco- nomically feasible, and (d) the applicant has the financial ability to complete the works and the application was not filed for purposes of speculation and monopoly. However, the engineer may reject an application if he determines it will interfere with the more bene- 49 Utah Code Ann., sec. 73-1-1 and sec. 73-3-1; Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 239 Pac. 479 (1925). 50 Sowards v. Meagher, 37 Utah 212, 108 Pac. 1112 (1910). 51 Utah Code Ann., sec. 73-2-8. 62 Spanish Fork Westfleld Irr. Co. v. District Court, 99 Utah 527, 104 P. 2d 353 (1940). 53 Utah Code Ann., sec. 73-3-2. MRiordan v. Westwood, 115 Utah 215, 203 P. 4d 922 (1949). 55 Utah Code Ann., sees. 73-3-6, 73-3-7. |