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Show UTAH 729 joyment of the water right.103 The court has further said that there is a presumption against the acquisition of a right in this manner, and the burden is upon the party asserting a claim of adverse use to prove it.104 D. ESTOPPEL The Utah court has held that an appropriator may lose his right to the use of water by inequitable conduct which leads others to make use of their water rights in a manner inconsistent with such right, but on the assumption that such use would be legal.105 E. MISCELLANEOUS In addition to the statutes and doctrines discussed above which may cause loss of water rights, there are a number of questions with respect to the point at which an appropriator's right of use or con- trol ends, or is lost; and, in a similar vein, questions arise as to whether an appropriator loses-or indeed whether he ever ob- tained-a right to use certain classes of water. Some of these prob- lems are noted briefly below. (1) Saved or salvaged water.-Salvaged waters are those which have always been a part of the system or source of supply, but have been lost to the established users as far as any application to a bene- ficial use is concerned, and which are recovered for use through the efforts of man. The Utah court has stated that the party whose efforts resulted in the salvage of water is entitled to its use, and the user whose water is being Tost has no preferential right to salvage it.106 The burden is upon the person claiming he has saved water to prove it, and also to show that he has done so without impairing prior rights.107 At present, it appears that the right to use salvaged water can only be established by the filing of an application to ap- propriate the water which is to be salvaged. (2) Developed waters.-Developed water is water which was not a part of the known system or source of supply prior to the work of the developer. The burden of proof is upon the developer to prove, at his own expense and by clear and convincing evidence, that he is not intercepting water which supplies other rights in the system.108 The individual who, by his efforts, develops a flow of water in addi- tion to existing rights is entitled to have an application approved to appropriate this developed water.109 (3) Wastewater.-A water user is entitled to use his waste and seepage waters as long as he has them in his possession and control. The Utah court has emphasized that this must be physical control and possession,110 and once wastewater escapes the control of the original appropriator, he loses all right to it, and it is subject to reappropnation. But the original appropriator is not required to 103 Wellsville East Field Irr. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 137 P. 2d 634 (1943). 104 In re Use of Water Within Drainage Area of Green River, 12 U. 2d 102, 363 P. 2d 199 (1961). ™Lehi Irr. Co. v. Moyle, 4 Utah 327, 9 Pac. 867 (1886). u»Big Cottonwood Ditch Co. v. Shurtliff, 56 Utah 196, 189 Pac. 589 (1919). 107 Howeroft v. Union & Jordan Irr. Co., 25 Utah 311, 71 Pac. 487 (1903). x*Bastian v. Nebeker, 49 Utah 390, 163 Pac. 1092 (1916). *» Bullock v. Track, 4 U. 2d 370. 294 P. 2d 707 (1956). "° McNaughton v. Eaton, 121 Utah 394, 242 P. 2d 570 (1952). |
