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Show 768 mitted to run to waste or is used by others without right, and that no right to the use of water either appropriated or unappropriated could be acquired by adverse use or adverse possession.355 The doctrine of prior appropriation has been the law in Utah from the time the Mormon pioneers entered Great Salt Lake Basin in 1847, to the exclusion of any recognition of riparian rights. It was many years after the first settlement and use of water before the Territorial supreme court was called upon to recognize and apply the doctrine of appropriation,888 although in the meantime that doctrine had been adopted and applied by custom in the various irrigation communities.867 And it was not until 1891 that the supreme court had occasion to express its repudiation of the doctrine of riparian rights, in emphatic terms, as utterly inapplicable to the conditions within the Territory and as never having been recognized by the legislature or by the practices and usages of the inhabitants.858 "In Utah the doctrine of prior appropriation for beneficial use is, and always has been, the basis of acquisition of water rights." 859 Waters in definite underground streams have been held consistently to be the subject of appropriation.360 With respect to other ground waters, however, the decisions of the supreme court have passed through the stages of recognizing first the rule of absolute ownership of per- colating water as against appropriations initiated after the water- bearing lands had passed to private ownership, but of holding that 8511 Utah Laws 1939, ch. 111; Code Ann., 1943, §§ 100-1-4 and 100-3-1. 886 Crane v. Winsor, 2 Utah 248, 253 (1878); Munroe v. Ivie, 2 Utah 535, 537-538 (1880) j Lehi Irr. Co. v. Moyle, 4 Utah 327, 340, 9 Pac. 867 (1886); Elliott v. Whitmore (Utah), 24 Pac. 673 (1890). 857 The earliest legislation concerning water made grants of water privileges and authorized public officials to make grants: Laws and Ordinances of the State of Deseret (Utah), Compilation 1851, Shepard Book Co., Salt Lake City, Utah, 1919. A statute passed in 1880 recognized accrued rights to water acquired by appropriation or adverse use: Utah Laws 1880, ch. XX. The first statutory authorization for the future appropriation of water was provided by Laws 1897, p. 219, et seq. **Stowell v. Johnson, 7 Utah 215, 225-226, 26 Pac. 290 (1891). See also Salt Lake City v. Salt Lake City Water & Electrical Power Co., 25 Utah 456, 464, 71 Pac. 1069 (1903); State v. Rolio, 71 Utah 91, 101-107, 262 Pac. 987 (1927); Wrathall v. Johnson, 86 Utah 50, 93-94, 40 Pac. (2d) 755 (1935); Whitmore v. Salt Lake City, 89 Utah 387, 398, 57 Pac. (2d) 726 (1936); Spanish Fork West Field Irr. Co. v. District Court, 99 Utah 527, 534, 104 Pac. (2d) 353 (1940); Moyle v. Salt Lake City, 111 Utah 201, 216, 176 Pac. (2d) 882 (1947); Clark v. Nash, 198 U.S. 361,370 (1905). 859 Gunnison Irr. Co. v. Gunnison Highland Canal Co., 52 Utah 347, 354, 174 Pac. 852 (1918). 860 Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 254, 60 Pac. 943 (1900); Herriman Irr. Co. v. Keel, 25 Utah 96, 110, 69 Pac. 719 (1902); Howcroft v. Union & Jordan Irr. Co., 25 Utah 311, 316, 71 Pac. 487 (1903); Whitmore v. Utah Fuel Co., 26 Utah 488, 497-498, 73 Pac. 764 (1903); Chandler v. Utah Copper Co., 43 Utah 479, 486, 135 Pac. 106 (1913). |