OCR Text |
Show 724 UTAH in the first instance.65 Therefore, when an appeal is taken from a decision of the State engineer on an application to appropriate, the scope of the review is limited to determining whether the applicant should be allowed to proceed with his plan of appropriation. Of course, the decision of the court is an adjudication of those issues, and is res judicata between the parties, just as are court decisions on other matters.66 While the applicant has the burden of showing that his applica« tion meets the statutory requirement for approval, all doubts are resolved in favor of the applicant because the public policy of the State is to place the maximum quantity of water to beneficial use. If, after approval of the application, the applicant does not find unappropriated water, or develops or uses it in such a way as to interfere with prior rights, he has not succeeded in his appropriation and he cannot perfect his application. Thus, at least in theory, all costs, risks, and expenses in attempting to develop unappropriated water are borne by the applicant. The decision of the district court is appealable to the Utah Supreme Court;67 (7) Rights-of-way A Utah statute provides that appropriation of water is a public use, and states that any person may have a right-of-way across public, private, or corporate lands in order to install the necessary facilities for the diversion and use of water, upon the payment of just compensation. There is also a condemnation procedure to obtain a right to use or enlarge an existing canal or ditch, again upon pay- ment of just compensation.68 In an early decision, the Utah Supreme Court upheld the constitutionality of this statutory procedure in a condemnation action by an individual to enlarge his neighbor's ditch in order to get irrigation water to his own land, on the ground that this was a public purpose. This decision was affirmed by the U.S. Supreme Court.69 3.2 Nature and Limit of Bights A. NATURE OF RIGHT ACQUIRED Under Utah law, a water right is treated as a species of real prop- erty and is protected in the same manner as other real property.70 It is a usufructuary right,71 that is, the right to divert the user's beneficial requirements from the source of supply, and this demand reaches to all upstream sources which supply the stream.72 This is to be distinguished from ownership of the corpus of the water while it is flowing in the stream, since water in streams belongs to the public and is not susceptible to private ownership. The appropria- 66 United States v. District Court, 121 Utah 1, 238 P. 2d 1132 (1951). ™East Bench Irr. Co. v. Utah, 5 U. 2d 235, 300 P. 2d 603 (1956). 87 Utah Code Ann. Sec. 73-3-15. 88 Utah Code Ann. Sec. 73-1-5, 73-1-6, 73-1-7. e9Nash v. Clark, 27 Utah 158, 75 Pac. 371 (1904); Clark v. Nash, 198 U.S. 361 (1905). 70 In re Bear River Drainage Area, 2 U. 2d 208, 271 P. 2d 846 (1954). 71 Salt Lake City y. Salt Lake City Water d Electrical Power Co., 24 Utah 249, 67 Pac. 672 (1902). 72 Richlands Irr. Co. v. Westview Irr. Co., 96 Utah 403, 80 P. 2d 458 (1938). |