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Show 31 as Thomas felt. Instead the judgment should be based upon the long- term consequences: specifically the law's ( 1) impacts on the future water administration framework of Utah, and ( 2) the changes in development practices it induced. The Act of 1880 did away with the county court's role in water resource planning or its direct development decision making role. However, the selectmen of each county were designated as water commissioners. They were directed to make and record observations of stream flow, determine average seasonal flow, receive and determine claims to water rights and on receipt of proof of a " right to the use of water having vested" issue certificates of ownership, oversee a fair distribution of water in the respective counties, hear and decide disputes, and file copies of their findings with county recorders. 36 As can be seen, the county courts were still heavily involved in water administration. Under these terms it was no longer their primary duty to enforce a beneficial use of public waters, rather it was intended that they would provide ( 1) a means of settling disputes between different appropriators, ( 2) provide for record keeping, and ( 3) collect pertinent water resource use and availability information. Commissioners now issued certificates to applicants on evidence of their having filed upon, diverted, and used water. If no one stepped forward to protest during a time of public advertising, they certified the claim. One result was that filings absurd in their size or purpose were certified without thought for future needs or without consideration of the public's interest37 When complaints later developed, the commissioners were the first board of inquiry investigating " vested" rights, which ( by definition) accrued from the diversion of unappropriated water and continuous use for seven years. 38 Lawsuits were provided for under the law, but only as a second recourse when litigants were dissatisfied with the determination of the commissioners. While its provisions to measure streams and develop records were commendable, the Law of 1880 failed to make either financial or institutional arrangements to develop technical data. The selectmen who became commissioners were elected laymen. Few counties could hire an engineer. Most had certainly never conceived that such an officer was necessary. With the Mormon controversy approaching its bitter peak, the all- Mormon legislature had neither inclination nor money to get the territorial government involved. Consequently, the territorial government remained outside the realm of water administration. Counties, cities, and a growing number of private interests made for an increasingly decentralized water development picture. Notwithstanding its individualistic nature, the act gave legal form to the practice of measuring and distributing streams by fractions of the total flow which marked it clearly as being in the cooperative Utah tradition. Although the Powell surveyors and probably many Utahns were using measurement by miners' inches or cubic feet per second, no new system of measurement was mandated. Yet as technically unsatisfactory as the customary measurement by division of 35Ibid. 36lbi±, pp 56, 139- 141. 37Ibid., p 148. Here was the weakest part of the act . .. Under the system inaugurated in 1880 excessive grant were made if it did not at the time interfere widi the rights of other claimants. Territory of Utah, Journals of the Legislative Assembly of the Territory of Utah, of the Twenty- Fourth Session, for the Year 1880, p290. |
