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Show 732 UTAH However, until the early 1920's, percolating ground water was con- sidered to belong to the owner of the soil as part of his ownership of the land.128 But, the Utah court later observed that much of the language in these early decisions concerning private ownership of percolating ground water was really dicta. In any event, in the early 1920's, the doctrine of correlative rights was judicially adopted, entitling each landowner to use beneficially percolating ground water in proportion to his surface ownership of land.129 B. CURRENT RULE In 1935, the Utah Supreme Court abandoned the correlative rights doctrine and ruled that percolating ground water was subject to the appropriation doctrine.130 That same year the Utah legislature provided that rights to ground water could only be acquired by filing an application to appropriate in the office of the State engineer.131 The only source of water which is still considered exempt from the appropriation doctrine is underground water that is diffused and percolating through the soil near the surface and which sustains beneficial plantlife on the owner's land, without artificial diversion, and which follows no course traceable into a watercourse or onto the lands of others. This water is considered to be part of the soil and not public property subject to appropriation.182 In practical effect, this is only soil moisture which does not constitute any real- istic source of water supply, and it presents no significant problem in water right administration. C. PRE-STATUTORY PROCEDURE In 1935, the Utah court declared that all ground water was sub- ject to the appropriation doctrine, but prior to that time rights could be established simply by diverting the water and placing it to a beneficial use.133 Notice of claims to these early "diligence" rights to ground water can be recorded in the same manner as a notice of claim to surface diligence rights. In a subsequent decision, the court further defined the limit of these early rights by holding that they were limited to the amount of water which actually had been placed to beneficial use by the time the water code was amended in 1935. An individual who drilled his well in 1934, but who did not place the water to use until some- time after 1935, did not acquire any right to use the water by these efforts.134 D. CURRENT PROCEDURE The current procedure for initiating and perfecting a right to ground water in Utah is the same as that outlined for surface water. E. PROTECTION OF MEANS OF DIVERSION Historically, under Utah law an appropriator who received water by artesian flow has been entitled to have this hydrostatic pressure v* Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 60 Pac. 943 (1900). ™> Home v. Utah Oil Refining Co., 59 Utah 279, 202 Pac. 815 (1921). iso Wrathall v. Johnson, 86 Utah 50, 40 P. 2d 755 (1935). 181 Utah code Ann., sec. 73-3-1. wRiordan v. Westwood, 115 Utah 215, 203 P. 2d 922 (1949). *» Wrathall v. Johnson, 86 Utah 50, 40 P. 2d 755 (1935). m* Goodwin v. Tracy, 6 U. 2d 1, 304 P. 2d 964 (1956). |
