Rich County-Otter Creek Irrigation Co. v. Lamborn
12 Utah 2d 1, 361 P.2d 407, 1961 Utah LEXIS 178 (1961)
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Rule of Law:
To acquire a water right by adverse use, there must be continuous exclusive beneficial use of another's established water right, depriving the prior appropriator of their beneficial use for the statutory period (seven years before the 1939 statute), under a claim of right, without interruption or permission from the prior appropriator.
Facts:
- The state engineer initiated a general determination of water rights within the Bear River drainage area in Rich County, Utah.
- Grant Lamborn, Howard L. Lamborn, and Keith Jessop (appellants) are the successors in interest to James Jackson's ranch, which holds water rights to the south and middle forks of Otter Creek.
- In December 1919, a prior decree awarded the predecessors of Lamborns and Jessop a 180-acre water right.
- Lamborns and Jessop cultivated and irrigated 355 acres of land using water from the south and middle forks of Otter Creek.
- Rich County-Otter Creek Irrigation Company and its individual stockholders (respondents) divert water from Otter Creek below the conflux of its three forks and also have water rights from the Woodruff Canal.
- During some years, there was ample water for all users, but during times of water scarcity, disputes arose, and available waters were sometimes distributed voluntarily and with consent to meet vital needs.
- The Jackson Ranch is situated such that it cannot divert water from the north fork of Otter Creek, while respondent William T. Rex diverts most of his water from the north fork and some from the south and middle forks.
Procedural Posture:
- The state engineer commenced a general determination of water rights for the Bear River drainage in Rich County, Utah.
- The state engineer proposed a decree awarding Grant Lamborn, Howard L. Lamborn, and Keith Jessop a water right for 355 acres from the south and middle forks of Otter Creek.
- Rich County-Otter Creek Irrigation Company and its individual stockholders filed a protest against this proposed adjudication.
- The trial court awarded Lamborns and Jessop a primary water right for 355 acres until June 1st, but reduced the award to 180 acres from June 1st to the end of the irrigation season.
- Lamborns and Jessop appealed the trial court's reduction of their water right after June 1st.
- Rich County-Otter Creek Irrigation Company and its stockholders cross-appealed the trial court's award of more than 180 acres to Lamborns and Jessop prior to June 1st.
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Issue:
Did Grant Lamborn, Howard L. Lamborn, and Keith Jessop acquire additional water rights beyond their established 180-acre right by adverse use, either for 355 acres until June 1st or for 355 acres after June 1st, by continuously and adversely using the water rights of the Rich County-Otter Creek Irrigation Company and its stockholders?
Opinions:
Majority - Wade, Chief Justice
No, Grant Lamborn, Howard L. Lamborn, and Keith Jessop did not acquire additional water rights for 355 acres after June 1st by adverse use, because their use did not continuously deprive the respondents of their water rights during that period, but they did acquire an additional right for 355 acres until June 1st, as the evidence, though not strong, was sufficient to show adverse use and deprivation during that earlier period. The court affirmed the trial court's finding that adverse use requires an exclusive beneficial use that precludes and deprives the prior appropriator of their water right continuously for seven years (before the 1939 statute), under a claim of right, without interruption or permission. For the period after June 1st, mere physical evidence of cultivating 355 acres did not prove adverse use, especially when there was often ample water, or when disputes were settled by voluntary adjustment rather than actual deprivation, particularly given appellants' existing prior 180-acre right. However, for the period up to June 1st, despite divergent testimony, the evidence was precise and positive that appellants had uninterrupted use of ample water, and the court found this use to be adverse and sufficient to show deprivation of respondents' prior rights. The court will only reverse trial court findings of fact in equity cases if they are clearly wrong, and found the evidence supported the trial court's decision.
Analysis:
This case clarifies the stringent requirements for establishing a prescriptive water right in Utah, distinguishing it from abandonment and forfeiture. It emphasizes that physical use alone is insufficient; the use must actively and continuously deprive a prior appropriator under a claim of right. The decision is particularly significant for its interpretation of the 1939 statute, which eliminated the ability to acquire water rights by adverse use thereafter, limiting such claims to acts occurring between the 1919 decree and the 1939 statute. This creates a clear historical cutoff for prescriptive water rights, making such claims increasingly rare for post-1939 actions and highlighting the importance of statutory appropriation for modern water rights acquisition.
