Bingham v. Roosevelt City

2010 UT 37
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Melvin Bingham, Glenda Bingham, 	No. 20081061
Howard Horrocks, Ila Faye Horrocks,
Virginia Houston, Fern Oberhansly
Labrum, Kent Nelson, George
Richins, and Loraine Richins,
Plaintiffs and Appellants,
v.
F I L E D
Roosevelt City Corporation,
Defendant and Appellee. 	May 14, 2010
---
Eighth District, Vernal Dep’t
The Honorable John R. Anderson
No. 040800250
Attorneys: 	J. Craig Smith, Kathryn J. Steffey, Bryan C. Bryner,
Salt Lake City, for plaintiffs
David L. Church, Salt Lake City, for defendant
Donald E. McCandless, Provo, for amici Living Rivers
and Great Basin Water Network
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In this case, several individuals who own property in
the North Hayden Area (collectively, the “North Hayden Group” or
the “Group”) appeal the district court’s grant of summary
judgment against them. 	The North Hayden Group alleges that
nearby Roosevelt City (the “City”) has diverted water from the
Neola-Whiterocks aquifer in a manner that lowers the surrounding
water table and makes the soil less saturated. 	This diminution
in soil saturation, the Group alleges, has made it more costly
for Group members to irrigate their land and has impaired their
ability to raise crops and livestock. 	The Group’s complaint
asserted that the City’s pumping was negligent, interfered with
the Group’s water rights, and amounted to an unconstitutional

1 Because the North Hayden Group appeals from the district
court’s grant of summary judgment, we present the facts, in a
manner consistent with rule 56 of the Utah Rules of Civil
Procedure, “in the light most favorable to the nonmoving party.”
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (internal
quotation marks omitted); see also Mountain States Tel. & Tel.
Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1261
(Utah 1984) (“Doubts, uncertainties or inferences concerning
issues of fact must be construed in a light most favorable to the
party opposing summary judgment.”).
No. 20081061 	2
taking of the value of the Group’s property. 	The City moved for
summary judgment on several grounds. 	First, it contested the
Group’s takings, interference, and negligence claims on their
merits. 	It also asserted that the Group’s claims were barred by
the relevant statutes of limitations and that the Group’s
interference claim was barred by Utah’s governmental immunity
statutes. 	The district court granted summary judgment in favor
of the City with regard to all of these issues. 	The North Hayden
Group appeals. 	We affirm in part and reverse in part.
BACKGROUND
¶2 	In 1983, Roosevelt City purchased property, including
two wells and the associated water rights, in the North Hayden
area. 1 	After purchasing the property, the City filed various
change applications with the Utah State Engineer to change the
point of diversion for two of its existing water rights to the
location of the two wells. 	The City rehabilitated and deepened
the two existing wells and eventually drilled three additional
wells, culminating in five wells known collectively as the Hayden
Well Field. 	Members of the North Hayden Group protested the
change applications filed with the Office of the State Engineer
and also protested the drilling of the additional three wells.
Despite these protests, by the fall of 1990, all five wells in
the Hayden Well Field were pumping water for the City.
¶3 	The wells that constitute the Hayden Well Field draw
water from the Neola-Whiterocks aquifer, an unconfined, shallow
aquifer underlying the Hayden area. 	Historical data indicate
that, before the Hayden Well Field was established, the static
water level in the area was 14.3 feet below ground surface. 	In
the years since the wells became active, this level has dropped
dramatically; in 2008 the water level at one of the wells was
94.6 feet below the surface. 	This change is the result of the
geologic and hydrologic characteristics of the area. 	One key
characteristic of unconfined aquifers, like the Neola-Whiterocks
aquifer, is that water can be drawn through the soil into the

3 	No. 20081061
aquifer. 	Thus, if water is extracted from the aquifer more
quickly than it is naturally replenished, the water table in the
surrounding area will drop. 	Because of the nature of this
phenomenon, the underground area of reduced soil saturation is in
the shape of an inverted cone, with the point of the cone
extending downward toward the point at which the water is
extracted. 	Accordingly, the depth of the water table will be
most significantly impacted at the point of extraction, but even
as one moves away from this point, the water table will be lower
than it otherwise might be. 	Therefore, the effects on the water
table are apparent even on parcels of land that are not
immediately adjacent to the wells.
¶4 	This type of aquifer is different from a confined
aquifer. 	Confined aquifers are separated from the adjacent soil
by a layer of less permeable stone. 	When confined aquifers are
depleted, this layer of less permeable material prevents water
from being drawn into the aquifer through the soil. 	This in turn
makes the impact on the water table in the surrounding area far
less dramatic. 	The North Hayden Group asserts that beneath the
Neola-Whiterocks aquifer, there exists a confined aquifer--the
Duchesne River Formation--from which the City could extract its
water without so dramatically impacting the water table in the
surrounding area. 	But because the wells extract water instead
from the unconfined aquifer, each additional year of pumping
causes the water table to continue to decrease.
¶5 	Members of the North Hayden Group have suffered various
injuries as a result of this change in the water table. 	After
the wells were put into production, trees and grass died.
Members of the Group are no longer able to irrigate their lands
effectively because the irrigation water is now quickly absorbed
and drawn deep into the soil, past the root systems of the crops
and pasture vegetation, to replenish the aquifer. 	Thus, raising
crops and livestock is much more costly in some instances and
practically impossible in others.
¶6 	The North Hayden Group filed suit against the City on
June 3, 2004, seeking damages and injunctive relief. 	The Group
asserted three causes of action: 	interference with water rights,
takings, and negligence. 	The complaint did not allege that the
City used any water right or water source for which it did not
have an approved water right certified by the State Engineer.
Nor does the Group claim any interest in the water being
appropriated by the City. 	Rather, the Group claimed that it has
various interests in other water rights and that the City’s
actions have had a negative impact on these water rights.
Specifically, because its members’ water is being drawn down

2 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation
and internal quotation marks omitted).
No. 20081061 	4
through the soil, the Group asserted that the quantity of water
to which they are entitled is no longer sufficient to irrigate
their land effectively.
¶7 	As a result, the Group claims that its members can no
longer grow hay, pasture their cattle, or derive income from
their properties, and that both their water rights and land have
lost substantially all of their value. 	The Group members alleged
that these losses were a result of the continuous pumping of the
Hayden Well Field, which lowered the water table under their
properties.
¶8 	The City moved for summary judgment based on a number
of theories. 	First, the City challenged the merits of each of
the Group’s claims. 	With regard to the Group’s takings claims,
the City argued that the property interests asserted by the Group
are not protected by the takings clauses of the United States and
Utah Constitutions. 	With regard to the Group’s claim of
interference, the City argued that the Group could not prevail on
such a claim because the undisputed facts show that the City is
pumping water that it has lawfully appropriated and to which the
Group has no rights. 	The City challenged the Group’s negligence
claim by arguing that it did not owe the Group any duty to
preserve the water table at historic levels.
¶9 	The City also argued that the Group’s claims were
barred by the applicable statutes of limitations because the
wells were drilled decades ago and the Group members for years
have known, or should have known, that the City’s pumping was
causing the harms alleged in this case. 	Finally, the City argued
that the Group’s interference claim was barred by the
Governmental Immunity Act of Utah. 	The district court ruled in
favor of the City on each of these issues. 	On appeal, the North
Hayden Group challenges all of these determinations. 	We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (2008
& Supp. 2009).
STANDARD OF REVIEW
¶10 	“An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness and views the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” 2

5 	No. 20081061
ANALYSIS
¶11 	In analyzing the district court’s grant of summary
judgment, we address each issue in turn. 	We begin by addressing
the Group’s takings claim. 	We then address the Group’s claim
that Roosevelt City’s conduct constitutes interference with the
Group’s water rights. 	Although we affirm the district court’s
grant of summary judgment in favor of the City with regard to
these two claims, we find that the district court erred in its
analysis of the Governmental Immunity Act of Utah. 	We then
address the Group’s negligence claim. 	Finding that the
continuing tort doctrine applies, we hold that the district court
erred in its determination that this claim was barred by the
statute of limitations. 	Finally, we hold that the City owes a
duty of reasonable care to parties who will foreseeably be
injured by its method of diverting water. 	Accordingly, we
reverse the district court’s determination to the contrary and
remand for further proceedings.
I. 	THE NORTH HAYDEN GROUP HAS NOT SUFFERED A COMPENSABLE TAKING
AS A RESULT OF ROOSEVELT CITY’S USE OF LAWFULLY APPROPRIATED
WATER RIGHTS
¶12 	The City’s diversion of water, even to the extent it
has lowered the water table and altered the amount of water in
the soil, has not unconstitutionally taken property from the
North Hayden Group. 	The Group contends that both the Utah
Constitution and the United States Constitution prohibit the City
from negatively impacting the water level in the Group members’
soil without providing just compensation for the corresponding
diminution in property value. 	The district court disagreed,
concluding that the Group members have no protectable interest in
the level of water in the soil beneath their land. 	We affirm.
¶13 	Both the Utah Constitution and the United States
Constitution provide protection against a government taking of
private property. 	Article I, section 22 of the Utah Constitution
provides that “[p]rivate property shall not be taken or damaged
for public use without just compensation.” 	The Fifth Amendment
to the United States Constitution provides that private property
shall not “be taken for public use, without just compensation.”
The North Hayden Group correctly points out that different levels
of protection arise from these distinct constitutional
guarantees. 	For instance, because the Utah Constitution bounds
the ability of the government not only to “take[],” but also to
“damage[],” private property, we have characterized this state
constitutional provision as being broader than its federal

3 Bagford v. Ephraim City, 904 P.2d 1095, 1097 (Utah 1995)
(“This provision is broader in its language than the similar
provision in the Fifth Amendment of the United States
Constitution.”).
4 Colman v. Utah State Land Bd., 795 P.2d 622, 626 (Utah
1990) (quoting State ex rel. State Road Comm’n v. Dist. Court,
Fourth Judicial Dist., 78 P.2d 502, 506 (Utah 1937)).
5 Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).
6 See Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 321-22 (2002) (“The text of the Fifth
Amendment itself provides a basis for drawing a distinction
between physical takings and regulatory takings. 	Its plain
language requires the payment of compensation whenever the
government acquires private property for a public purpose . . . .
But the Constitution contains no comparable reference to
regulations that prohibit a property owner from making certain
uses of her private property.”).
7 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-15
(1992) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
8 See id. at 1015 (One situation in which the Court has
“found categorical treatment appropriate is where regulation
(continued...)
No. 20081061 	6
counterpart. 3 	When determining whether government action has
violated article I, section 22 of the Utah Constitution, we
inquire whether there has been “‘any substantial interference
with private property which destroys or materially lessens its
value, or by which the owner’s right to its use and enjoyment is
in any substantial degree abridged or destroyed.’” 4
¶14 	The Fifth Amendment to the United States Constitution
“prohibits the government from taking private property for public
use without just compensation.” 5 	In the language of this
prohibition itself, the requirement can clearly be found that the
government must pay compensation for an actual physical
appropriation or permanent physical occupation of land. 6
¶15 	Beyond this, the jurisprudence of the United States
Supreme Court has also established that government regulation
that goes “too far” will also constitute a taking of the
regulated land. 7 	Thus, just compensation must be awarded if
government action deprives a landowner of all economically
beneficial use of his land. 8 	Even short of a deprivation of all

8 (...continued)
denies all economically beneficial or productive use of land.”).
9 See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104,
123-24 (1978) (determining that whether “justice and fairness
require that economic injuries caused by public action be
compensated by the government” depends upon the “particular
circumstances” of a given case (citations and internal quotation
marks omitted)).
10 Palazzolo, 533 U.S. at 617.
11 Bagford, 904 P.2d at 1097-98 (citing Farmers New World
Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1243-44 (Utah
1990); Colman, 795 P.2d at 625); 	see also Strawberry Elec. Serv.
Dist. v. Spanish Fork City, 918 P.2d 870, 877 (Utah 1996).
12 Penn Cent., 438 U.S. at 124-25 (citing United States v.
Willow River Power Co., 324 U.S. 499 (1945); Demorest v. City
Bank Farmers Trust Co., 321 U.S. 36 (1944); United States v.
Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Muhlker v.
New York & Harlem R. Co., 197 U.S. 544 (1905)).
7 	No. 20081061
economic value, landowners who suffer a substantial deprivation
as a result of government regulation of their property may be
entitled to compensation under the Fifth Amendment. 9 	Determining
whether this sort of “regulatory taking” has occurred “depend[s]
on a complex of factors including the regulation’s economic
effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations, and
the character of the government action.” 10
¶16 	But the standards for finding a taking under both the
United States and Utah Constitutions begin with a fundamental
inquiry that is only implicit in these oft-stated standards.
That fundamental question is whether the thing taken--whether it
be land, economic value, or a right to use property in a
particular way--qualifies as property within the meaning of each
of these constitutional provisions. 	To this end, we have held
that the prohibition on takings found in the Utah Constitution
applies only to “protectable interest[s] in property.” 11
Similarly, in a line of cases, the United States Supreme Court
“has dismissed ‘taking’ challenges on the ground that, while the
challenged government action caused economic harm, it did not
interfere with interests that were sufficiently bound up with the
reasonable expectations of the claimant to constitute ‘property’
for Fifth Amendment Purposes.” 12

13 Strawberry Elec., 918 P.2d at 877 (internal quotation
marks omitted).
14 Bagford, 904 P.2d at 1099.
15 Farmers, 803 P.2d at 1244 (internal quotation marks
omitted).
16 Strawberry Elec., 918 P.2d at 878. 	See also Bagford, 904
P.2d at 1099 (“[T]o create a protectable property interest, a
contract must establish rights more substantial than a
unilateral expectation of continued privileges.”).
No. 20081061 	8
¶17 	Stated plainly, in order to be entitled to compensation
for the change in the level of soil saturation, the Group must
prove that it has an interest that garners the protections of one
of these constitutional guarantees. 	We look first to the Group’s
claims under the Utah Constitution. 	Finding that the Group’s
interest is not protectable under article I, section 22, we next
examine the Group’s claims under the federal constitution. 	We
conclude that the Group’s interest in the water table underlying
its property is also not within the protections of the Fifth
Amendment.
A. 	The Utah Constitution Does Not Provide Protection for the
Group’s Claimed Interest in the Level of Water in Its Soil
¶18 	The level of soil saturation underlying the Group’s
land is not a property interest protected by the Utah
Constitution. 	Under the Utah Constitution, a takings claim can
be sustained only if the claimant can “demonstrate some
protectible interest in property.” 13 	Without such an interest,
“there is no property that can provide the basis for
compensation.” 14 	As the North Hayden Group points out, we have
characterized this protection as broad by stating that the types
of property to which such an interest may attach are “practically
unlimited.” 15 	But the critical characteristic of such an
interest is not what kind of property it attaches to, the varying
types of which may indeed be without limit, but exactly what kind
of interest the plaintiff has in that property.
¶19 	To enjoy the protections of article I, section 22, an
alleged property interest must be more “than a unilateral
expectation of continued privileges.” 16 	We have declined to find
a taking in situations where the plaintiffs failed to prove a

17 Bagford, 904 P.2d at 1099.
18 Smith v. Price Dev. Co., 2005 UT 87, ¶ 26, 125 P.3d 945
(internal quotation marks omitted).
19 203 P.2d 922 (Utah 1949).
20 Id. at 923.
21 Id.
22 Id.
9 	No. 20081061
“vested legally enforceable interest.” 17 	In contrast, we have
acknowledged the protectable interest one acquires when they have
obtained a “completed, consummated right for present or future
enjoyment.” 18
¶20 	To establish a vested interest in the amount of water
in its soil, the Group characterizes the water table as an
indispensable component of other property interests that, it
claims, are legally enforceable. 	Under one characterization, the
Group asserts that water in the soil is bound up with the land
under which it resides, so that ownership of the land includes
entitlement to the water beneath it. 	Alternatively, the Group
posits that soil saturation is a component of the various water
rights that its members have lawfully appropriated. 	This latter
characterization draws from the Utah Code provisions that control
appropriation of water rights. 	Specifically, Utah Code section
73-1-3 states that “[b]eneficial use shall be the basis, the
measure and the limit of all rights to the use of water in this
state.” 	The Group asserts its members’ various water rights have
become less beneficially useful (because more water is necessary,
for example, to irrigate the dry soil). 	Put differently, even
though the Group members are still able to divert water in the
full amounts to which their appropriations entitle them, that
amount of water does not go as far as it once did.
¶21 	Neither of these characterizations accurately reflect
the law in Utah. 	The proposition that water in the soil belongs
to the corresponding landowner is borne from dicta in the case
Riordan v. Westwood.19 	In that case, water from the soil
percolated through the surface of the land and formed a spring on
the appellee’s land. 20 	The appellee had never taken any action
to appropriate this water. 21 	The appellant entered onto the
land, diverted the water, and then sought to appropriate the
water via an application through the State Engineer’s Office. 22

23 Id. at 930-31.
24 Id. at 929.
25 Id. at 929-30.
26 Id. at 930.
27 Id.
No. 20081061 	10
We held that this water was subject to such appropriation and
remanded for consideration of the appellant’s application. 23
¶22 	But in so holding, we engaged in a discussion about the
nature of all water diffused through the soil. 	We stated that
[w]here . . . water is diffused and
percolates through the soil so near the
surface that without artificial diversion or
application it produces plant life and
thereby beneficially affects the land, and
where its course cannot be traced onto the
lands of any person other than the owner of
the land where it is found, such water is
percolating waters and as such are a part of
the soil, they are not public waters, and the
right to the use thereof cannot be acquired
by appropriation under our appropriation
statute. 24
Speaking even more broadly, we also noted that, where water could
not be traced to a particular source, appropriation of that water
could not be allowed because it would permit strangers to the
land to drain the soil and carry the water away, in spite of the
fact that the water was being beneficially used. 25 	We noted that
permitting this water to be appropriated would put the landowners
in an untenable position; appropriation under our statutes
required diversion, but the landowners could not artificially
divert this water because it was naturally present on their
land. 26 	Given this situation, we suggested that the water could
not be appropriated. 27
¶23 	These observations do not control in this case. 	First,
as dicta, they never carried the force of law. 	Riordan upheld
the right of a third party to appropriate this water where it

28 See id. at 931.
29 See Revised Stat. of Utah, § 100-1-1 (1933); Water and
Water Rights, Chapter 67, § 1, 1919 Utah Laws 177, 177 (emphasis
added).
30 See Utah Code Ann. § 100-1-1 (1943); Act of March 13,
1935, Chapter 105, § 1, 1935 Utah Laws 195, 195; see also
Riordan, 203 P.2d at 933-34 (Latimer, J., concurring in part;
dissenting in part).
31 See Riordan, 203 P.2d at 933-34 (Latimer, J., concurring
in part; dissenting in part); id., 203 P.2d at 932-33 (Wolfe, J.,
concurring in part; dissenting in part).
32 Provo River Water Users’ Ass’n v. Morgan, 857 P.2d 927,
932-33 (Utah 1993).
11 	No. 20081061
came to the surface through a spring in the ground. 28 	These
observations about the nature of that water while still in the
ground were not indispensable to our reasoning, and so were
dicta. 	Second, in cases decided subsequent to Riordan, we have
construed Utah’s appropriation statutes to clearly make such
water the subject of appropriation. 	Prior to 1935, Utah’s
appropriation statute stated that “water . . . whether flowing
above or under the ground in known or defined natural channels,
is hereby declared to be the property of the public.” 29 	The
statutory language thus suggested that water not in such channels
was not public and subject to appropriation. 	In 1935, the
reference to “known or defined natural channels” was removed. 30
While concurring in the result, two justices of the court
dissented from the court’s reasoning in Riordan on the basis that
this statutory change permitted the appellant to appropriate the
water unless the appellee could show an appropriation prior to
that date. 31 	Although that basis for disposition did not garner
a majority of votes in Riordan, we have since made it clear that
this change in the statute was the culmination of the
“whittl[ing] away” of “the absolute control exercised over
[percolating waters] by landowner-users.” 32 	Thus, regardless of
the import of our dicta in Riordan, it has since been made clear
that ownership of land, by itself, does not create an entitlement
to the water in the soil. 	To the extent that language in Riordan
suggests that an entitlement to water in the soil flows merely
from ownership of land, we take this opportunity to disavow that
interpretation.
¶24 	Regardless of the status of a landowner’s rights
regarding the use of that water while it remains unappropriated,

33 See Utah Code Ann. § 73-1-3 (2009); see also Salt Lake
City v. Gardner, 114 P. 147, 150 (Utah 1911) (“[A]ppellants
should be limited to the amount of water they applied to a
beneficial use, and not to an amount they could have claimed or
require.”).
34 See Utah Code Ann. § 73-1-2.
35 See id. § 73-3-1.
No. 20081061 	12
the landowner clearly does not own that water merely because it
is present in the soil. 	This theory of ownership, therefore,
will not support a finding of a protectable interest for purposes
of the Utah Constitution.
¶25 	The North Hayden Group also seeks to characterize the
level of soil saturation as a component of the water rights its
members have lawfully appropriated, insofar as saturated soil
makes their appropriated water more beneficially useful. 	As
support for this proposition, it cites the beneficial use
statute, Utah Code section 73-1-3, which states that
“[b]eneficial use shall be the basis, the measure and the limit
of all rights to the use of water in this state.” 	The Group
misapprehends the nature of this statute.
¶26 	The statutory language on which the Group relies
operates as a constraint on appropriation, not a guarantee of
future value. 	That is, an appropriator of water rights may only
obtain a right to whatever amount of water has been put to
beneficial use (“the basis” and “the measure”) and no more than
can beneficially be used (“the limit”). 33 	This is reinforced by
the fact that when water rights are conferred so that the water
may be put to beneficial use, the right to use that water is
still granted in terms of a flow of cubic feet per second and a
volume of acre-feet. 34 	That is, where a beneficial use is
established, water rights are granted in finite quantities, not
in open-ended amounts to be evaluated in hindsight based on
whether the water was beneficially used. 	We are aware that a
party may contest an application for appropriation of water by
demonstrating to the State Engineer that the application will
interfere with a more beneficial use of the water. 35 	But this
alone does not endow an owner of a water right with a legitimate
claim of entitlement to any amount of water the owner can
beneficially use.
¶27 	We have previously undertaken an examination of whether
beneficial use, without prior appropriation, can form a
protectable interest. 	Indeed, we have previously evaluated the

36 328 P.2d 175, 175-76 (Utah 1958).
37 Id. at 176.
38 Id.
39 Id.
40 Id.
41 Id. at 179.
42 Id. at 180 (citing Hardy v. Beaver County Irrigation Co.,
234 P. 524 (Utah 1924)).
13 	No. 20081061
validity of a takings claim where government action diminished
soil saturation, and concluded that such a claim could not stand.
In Weber Basin Water Conservancy District v. Gailey, a water
conservancy district installed a reservoir in the Weber River
that had the effect of lowering the river’s water level. 36 	The
defendant in the case owned a tract of land adjacent to and near
the river, part of which was condemned as part of the conservancy
district’s plan. 37 	In the condemnation action, he challenged the
compensation he would be receiving in conjunction with this
taking. 38 	He argued that he was entitled not only to the value
of the condemned land, but also to compensation for the
diminution in value of the land he still owned. 39 	He alleged
that the water table was lowered by virtue of the change in flow
of the Weber River. 	Asserting that he had a protectable interest
in this water, he claimed that he was entitled to just
compensation for the changed value of his land based on the loss
of this water. 40
¶28 	In discussing beneficial use in that case, we made two
observations that are applicable here. 	First, we noted that this
court has “never gone so far as to base water rights on the mere
acceptance of benefits incidental to the presence of water on or
adjacent to one’s land.” 41 	We also reaffirmed the proposition
from a prior case that “passive acceptance of benefits of such
waters by those who had not by any affirmative act appropriated
and put the waters to beneficial use, nor complied with statutory
requirements to perfect such rights, did not permit them to
maintain rights against one who had made an appropriation by
diversion.” 42 	We held that no takings claim could be sustained
based on the lowering of the water table for the conservancy
district’s actions, even where the landowner suffered a

43 Id.
44 Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918
P.2d 870, 878 (Utah 1996).
45 Penn Cent. Transp. Co. v. New York City, 438 U.S. 104,
124 (1978).
No. 20081061 	14
diminution in the value of his land. 43 	We reaffirm that decision
in this case.
¶29 	Weber Basin makes clear that beneficial use of water is
not a substitute for an appropriation of water. 	The Group
members have not appropriated water from their soil. 	And to the
extent that the subsurface water makes its way to the Group
through its members’ established water rights, nothing has been
taken because Group members still receive the entire amount to
which they are entitled under these appropriations. 	As such, the
fact that this water has gratuitously made their lawfully
appropriated water more useful to them does not give rise to a
protectable interest in the continued use of that water.
¶30 	Stripped to its essence, the Group’s claimed interest
in the water table is analogous to the “unilateral expectation of
continued privileges” that we have held is insufficient to
support a takings claim. 44 	Without having lawfully appropriated
this water, the Group lacked a claim of entitlement to the
continued presence of water in its soil. 	Without this degree of
entitlement, the Group’s interest does not fall within the
protections of article I, section 22 of the Utah Constitution.
B. 	The Group’s Claimed Interest in the Level of Soil Saturation
Is Also Not Protected by the United States Constitution
¶31 	The Fifth Amendment to the United States Constitution
also does not require that compensation be paid to the Group.
Like the Utah Constitution, the federal constitution does not
provide protection against every government action that might
have negative economic consequences. 	The United States Supreme
Court has “accordingly recognized, in a wide variety of contexts,
that government may execute laws or programs that adversely
affect recognized economic values.” 45 	Rather, as mentioned, in
order to be protected by the Fifth Amendment, an economic
interest must be “sufficiently bound up with the reasonable
expectations of the claimant to constitute ‘property’ for Fifth

46 Id. at 124-25 (citing United States v. Willow River Power
Co., 324 U.S. 499 (1945); Demorest v. City Bank Farmers Trust
Co., 321 U.S. 36 (1944); United States v. Chandler-Dunbar Water
Power Co., 229 U.S. 53 (1913); Muhlker v. New York & Harlem R.
Co., 197 U.S. 544 (1905)).
47 See Palazzolo v. Rhode Island, 533 U.S. 606, 607 (2001).
48 243 U.S. 316, 317-18 (1917).
49 Id.
50 Id. at 318-19.
51 See id. at 332.
52 Id. at 330.
15 	No. 20081061
Amendment purposes.” 46 	When the government has neither invaded
nor appropriated a claimant’s property, and where government
action falls short of denying all economic value, the requirement
that the claimed interest be legally protected is made manifest
by the Court’s inquiry into “a complex of factors” that includes
the claimant’s “reasonable investment-backed expectations.” 47
¶32 	In determining whether the Group’s interests are
“sufficiently bound up” with its “reasonable expectations” that
the interests might qualify as property for purposes of the Fifth
Amendment, we find a useful contrast in two cases decided by the
Supreme Court. 	The first, United States v. Cress, is a case
heavily relied upon by the North Hayden Group, wherein mill
owners obtained riparian rights in the river adjacent to the land
where the mill was located. 48 	They diverted water from the river
so that water flowing through several channels would power the
mill. 49 	When the federal government dammed the river, the water
level increased, and the flow of water slowed so that it became
insufficient to drive the mill. 50 	The Court affirmed an award in
favor of the mill owners for the depreciation of the value of the
mill. 51 	In doing so, the Court relied on the property rights
created by state law: 	“Under the law of Kentucky, ownership of
the bed of the creek, subject only to the natural flow of the
water, is recognized as fully as ownership of the mill itself.” 52
¶33 	In a subsequent case with strikingly similar facts,
United States v. Willow River Power Co., the Court concluded that

53 324 U.S. 499, 510-11 (1945).
54 Id. at 499-500.
55 Id. at 501.
56 Id.
57 Id.
58 See id. at 509-11.
59 See id. at 506-09.
60 Id. at 507-09.
61 Id. at 510.
No. 20081061 	16
no compensation was owed to a mill operator. 53 	In Willow River,
a mill was built between the St. Croix river and one of its
tributaries, the Willow River. 54 	The St. Croix river, in turn,
flowed into the upper Mississippi river. 55 	The federal
government dammed the Mississippi near the mouth of the St. Croix
and thereby caused the water level in the St. Croix to rise. 56
This rise in the water level of the St. Croix decreased the
efficiency of the mill situated between the Willow and St. Croix
rivers. 57 	The Court concluded that the mill operator had no
protectable interest in maintaining the level of water in the St.
Croix. 58
¶34 	The factual distinction that led to these differing
results was the navigable nature of the St. Croix and Mississippi
rivers involved in the latter case. 59 	The Court examined the
long history of public authority over navigable waters and
concluded that the necessity of government control over navigable
waters required that the rights of riparian owners be subservient
to that control. 60 	Because of this subservience, the riparian
rights granted to the mill operators in Willow River simply did
not include the right to prevent the federal government from
enhancing the navigability of the St. Croix and Mississippi
rivers. 	As the Court stated, “[w]here these interests conflict
they are not to be reconciled as between equals, but the private
interest must give way to a superior right, or perhaps it would
be more accurate to say that as against the Government such
private interest is not a right at all.” 61 	In deciding that no
compensation was required for the diminution in value of this
mill, the Court applied the following standard: 	“[n]ot all
economic interests are ‘property rights’; only those economic

62 Id. at 502. 	We are aware that our system of water rights
differs from the riparian system at issue in these cases. 	But
the crux of these decisions is that constitutional protection
must be tied to something that is protected by the law. 	Thus, we
find the reasoning of these cases applicable even in determining
the bounds of our system of prior appropriation.
63 See Cress, 243 U.S. at 330.
64 See Willow River, 324 U.S. at 509.
17 	No. 20081061
advantages are ‘rights’ which have the law back of them, and only
when they are so recognized may courts compel others to forbear
from interfering with them or to compensate for their
invasion.” 62
¶35 	For purposes of resolving the issues in the case at
hand, the critical feature of these cases is the relationship
between state law and the word “property” in the Fifth Amendment.
In Cress, the Court relied on the protections afforded by
Kentucky law to determine that the mill operator had a property
interest in the level of water in the nearby river. 63 	In
contrast, in Willow River, the navigable nature of the river
limited the amount of protection that the mill operators could
invoke under state law. 	As the Court indicated, the level of
water in the river was “a privilege or a convenience, enjoyed for
many years, permissible so long as compatible with navigation
interests, but . . . not an interest protected by law when it
becomes inconsistent with plans authorized by Congress for
improvement of navigation.” 64
¶36 	Because of the interrelationship between Fifth
Amendment protection and principles of state law, we conclude
that the North Hayden Group’s claim also fails under the United
States Constitution. 	For the reasons, discussed above, that the
Group has no claim of entitlement that would give rise to a
protectable interest under article I, section 22 of the Utah
Constitution, the Group also does not have an interest
sufficiently supported by state law to be treated as property for
the purposes of the Fifth Amendment. 	Specifically, as indicated
in our case law, the Group did not appropriate the water in its
soil. 	And the mere fact that the presence of water in the soil
allowed the Group to more beneficially use other water does not
legally entitle the Group to be compensated for a reduction in
the level of the water table. 	We cannot conclude that the
Group’s interest in the level of water in its soil was
sufficiently bound up with reasonable expectations that the Group
is entitled to compensation for changes to the water level.

No. 20081061 	18
¶37 	The North Hayden Group also attempts to characterize
its members’ property interest as an interest in the value of
their land. 	This turns the relevant inquiry on its head.
Certainly, a takings claim based on economic injury can only
exist if the value of some property is diminished. 	But only if
this diminution is the result of interference with a protectable
interest will the claim be sustainable as a matter of
constitutional law. 	The relevant constitutional provisions do
not protect against all government action that might negatively
impact the value of land; they protect against government
interference in protected property interests. 	Where no such
interest exists, a change in the value of land is not sufficient,
standing alone, to give rise to a takings claim. 	Because we find
that the North Hayden Group has no protectable interest in the
water table underlying its members’ land, we affirm the district
court’s grant of summary judgment on this issue in favor of the
City.
II. 	THE NORTH HAYDEN GROUP’S CLAIM FOR INTERFERENCE WITH WATER
RIGHTS, WHILE NOT BARRED BY UTAH’S GOVERNMENTAL IMMUNITY
STATUTES, NEVERTHELESS FAILS AS A MATTER OF LAW
¶38 	The district court did not err in granting summary
judgment in favor of the City on the Group’s claim for
interference with water rights, but it did err in holding that
the claim was barred by the Governmental Immunity Act of Utah.
With regard to the Group’s interference claim, the district court
granted summary judgment in favor of the City on two alternative
grounds. 	First, it concluded that the Group could not prevail on
its interference claim because the City’s actions simply had not
impacted the Group’s water rights. 	Second, the district court
concluded that, under the Governmental Immunity Act of Utah, the
City was immune from suit for its complained-of conduct.
Although the district court correctly concluded that the Group
could not prevail on its interference claim, it incorrectly
concluded that the City was immune from suit. 	We first address
the issues related to governmental immunity before addressing the
merits of the Group’s interference claim.
A. 	By Complaining of Roosevelt City’s Reckless Indifference and
Disregard of the Group’s Rights, the North Hayden Group
Adequately Alleged Negligence for Purposes of the Governmental
Immunity Act
¶39 	The district court incorrectly concluded that the North
Hayden Group’s interference claim was barred by the Governmental
Immunity Act of Utah (the “Act”). 	This Act codifies the

65 See Utah Code Ann. §§ 63G-7-201, -301 (2008). 	The
Governmental Immunity Act has been recodified since the complaint
was filed in this case. 	The provisions at issue here have either
not changed, or have changed very slightly. 	Without expressing
an opinion on whether the current versions of these statutes
might operate differently than their predecessors, we cite to the
current versions for the sake of convenience.
66 See id. § 63G-7-301(4).
67 Id. § 63G-7-201(1).
68 Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164
(Utah 1993).
19 	No. 20081061
proposition that the state is immune from suit, but also enacts a
number of exceptions to this immunity that permit plaintiffs to
sue government entities for specific conduct. 65 	Central to the
case at hand, one such exception permits the government to be
sued for negligent acts. 66
¶40 	In its complaint, the North Hayden Group alleged that
the City’s actions “were intentional, willful, and malicious, or,
at least manifested a knowing and reckless indifference for and
disregard of the [Group’s] rights in [its] property.” 	The cause
of action for interference does not explicitly refer to the
City’s conduct as negligent. 	The district court concluded that
this description does not constitute negligence under the Act,
reasoning that “[i]f intentional and reckless conduct also
included negligence, then it would make little sense for the
Legislature to draw a distinction for waiving immunity only for
negligence.” 	The North Hayden Group argues that in so ruling,
the district court erred. We agree with the Group.
¶41 	The Act provides that all government entities “are
immune from suit for any injury that results from the exercise of
a governmental function.” 67 	Determining whether a government
entity’s action is immune from suit requires a three-step
analysis: 	first, we must determine whether the activity
performed was a government function; second, if so, we must
determine whether the Act waives immunity for that conduct; and
third, if immunity is waived, we must determine whether the Act
contains any exception to that waiver that would result in a
retention of immunity. 68
¶42 	The Act defines government function as any activity,
undertaking, or operation of a governmental entity, and includes

69 Utah Code Ann. § 63G-7-102(4).
70 Id. § 63G-7-301(4).
71 Diversified Holdings, L.C. v. Turner, 2002 UT 129, ¶ 29,
63 P.3d 686.
72 Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66,
¶¶ 41-43, 221 P.3d 256.
73 Id. ¶ 43.
74 Id. (quoting Atkin Wright & Miles v. Mountain State Tel.
& Tel. Co., 709 P.2d 330, 335 (Utah 1985)).
No. 20081061 	20
a “failure to act.” 69 	The district court found, and neither
party disputes, that the City was performing a government
function when it pumped and used water for municipal purposes.
¶43 	With regard to the second step in the analysis, the Act
contains several waivers of governmental immunity, including one
section that waives immunity for “injury proximately caused by a
negligent act or omission of an employee committed within the
scope of employment.” 70 	This is the provision on which the Group
relies. 	For the Group’s claim not to be barred, then, the
Group’s allegation of “reckless indifference . . . and disregard”
must be encompassed by this provision.
¶44 	In other contexts, this court has stated that negligent
conduct may include conduct that manifests “a knowing and
reckless indifference toward the rights of others.” 71 	For
instance, we have held that simple negligence will not support
a claim for punitive damages, but that negligence that arises to
the level of knowing and reckless indifference will support such
an award. 72 	Indeed, we have concluded that, “in Utah gross
negligence is equated with reckless disregard.” 73 	While
negligence generally connotes the failure to observe due care,
gross negligence and recklessness are “the failure to observe
even slight care.” 74
¶45 	Further, where complaints are capable of more than one
construction, we have, in some circumstances, required that
ambiguities be construed in a manner that sustains the complaint.
Specifically, where a complaint could reasonably state a cause of
action that sounds in either contract or tort, and where one of
those causes of action would be barred by a statute of
limitations and the other would not, we have indicated that the
complaint must be construed to state the cause of action that

75 Juab County Dep’t of Pub. Welfare v. Summers, 426 P.2d 1,
3 (Utah 1967).
76 Id. (internal quotation marks omitted).
77 The Group alternatively argues that its claim falls under
another exception set forth in the Governmental Immunity Act.
Specifically, Utah Code section 63G-7-301(3)(a)(ii) permits
government entities to be sued for injuries caused by “any
defective or dangerous condition of a public building, structure,
dam, reservoir, or other public improvement.” 	Because we find
that Utah Code section 63G-7-301(4) permits the Group’s suit, we
do not address this alternative argument.
78 See Utah Code Ann. § 63G-7-301(5).
21 	No. 20081061
would not be barred. 75 	We observed, “[t]he action, in the case
of doubt, should be construed to uphold it rather than to defeat
it, as the court presumes the pleader’s purpose is to serve his
best interest.” 76
¶46 	We are satisfied that an allegation of reckless
indifference fairly construed, encompasses negligence.
Therefore, we disagree with the district court’s finding that
this claim does not fall within the Act’s waiver of immunity for
negligent acts or omissions. 	Although the North Hayden Group’s
complaint did not expressly allege negligence with respect to its
interference claim, its allegation that the City’s activities
manifested “knowing and reckless indifference for and disregard
of” property rights encompasses an allegation of negligence and
falls within the waiver of governmental immunity for negligent
acts or omissions under section 63-30-10 of the Act. 77
¶47 	Lastly, although the Act provides several exceptions to
the waiver of immunity, which, if applicable, result in a
retention of immunity, 78 the City has not asserted that an
exception to the waiver of immunity applies. 	Therefore, we do
not reach the issue of whether the Act contains an exception to
the waiver of immunity that might apply in this case.
B. 	The District Court Correctly Concluded That the North Hayden
Group’s Claim for Interference With Water Rights Fails as a
Matter of Law
¶48 	Although the Group’s claim for interference with water
rights is not barred by the Governmental Immunity Act of Utah,
the district court did not err in granting summary judgment in
favor of the City. 	As mentioned, the district court also granted

79 Wayment v. Howard, 2006 UT 56, ¶ 13, 144 P.3d 1147
(emphasis added).
80 Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3,
¶ 28 n.10, 5 P.3d 1206, abrogated on other grounds by Otter Creek
Reservoir Co. v. New Escalante Irrigation Co., 2009 UT 16, ¶¶ 11-
13, 203 P.3d 1015.
No. 20081061 	22
summary judgment against the North Hayden Group on the
alternative basis that the Group could not prevail, as a matter
of law, on a claim for interference with water rights. 	Such a
claim is based on “obstructing or hindering the quantity or
quality of an existing water right.” 79 	In determining whether an
appropriator’s rights have been interfered with, we have stated
“the inquiry regarding interference focuses on actual
interference in the quantity or quality of water to which the
prior appropriator is entitled.” 80 	Put simply, to prevail on
claims for interference with water rights, plaintiffs must show
that they have lawfully appropriated a certain quantity of the
water, and that the defendant’s actions are obstructing or
hindering their ability to obtain that water.
¶49 	It is useful to articulate precisely the basis for the
Group’s complaint. 	Construed in the light most favorable to the
Group, the facts in this case establish that the Group members
have various appropriated water rights. 	The facts also establish
that the Group members are able to exercise these rights to their
fullest potential; the Group concedes that all of its members
still draw all the water to which they are entitled under these
rights. 	Thus, the Group’s claim cannot be based on interference
with these rights. 	Further, the facts establish that the City is
not diverting any more water than it has appropriated. 	Even
construed in the light most favorable to the plaintiffs, the
facts establish that the City is doing no more than exercising
its right to divert a certain quantity of water from a certain
point.
¶50 	Like the Group’s takings claim, its claim of
interference is based on the alternative theories that its
members’ water has become less useful, because more water is
necessary to successfully irrigate their land, or that they are
entitled, by virtue of their ownership of land, to the water in
the soil. 	For essentially the same reason that the Group does
not have a protectable property interest in this water, it also
cannot rely on these theories to state a claim of interference:
the Group members are simply not the owners of the water in their
soil. 	Certainly, the changes in the underlying water table have
made the water that the Group members have appropriated even more

81 344 P.2d 528, 529-30 (Utah 1959).
82 Id. at 531.
83 See id. at 529.
84 114 P. 147 (Utah 1911).
85 326 P.2d 719 (Utah 1958).
86 See Kano, 326 P.2d at 720 (“It appears that by
appropriation to a beneficial use, and by court decree, the
plaintiffs . . . acquired rights to use [the water at issue].”
(citation omitted)); Gardner, 114 P. at 149 (relying on court
decree that appellants were prior appropriators before examining
(continued...)
23 	No. 20081061
important. 	But it has not changed the amount to which they are
entitled, and the City’s use of its lawfully appropriated water
has not hindered their ability to obtain their appropriated
water.
¶51 	The Group cites a number of cases that it argues
support its position, but our review of these cases confirms our
conclusion that, without obstruction of an established water
right, no interference claim can be sustained. 	In Current Creek
Irrigation Co. v. Andrews, we examined a situation where the
pumping of water from a basin lowered the water table in the
surrounding area and made nearby springs and wells less
productive. 81 	We upheld a finding of interference, stating that
“[w]e have consistently enjoined the lowering of the static head
pressure which had the effect of preventing a prior user from
continuing a beneficial use of underground waters.” 82 	But in
Current Creek, all of the plaintiffs had validly appropriated the
water that was being obstructed. 83 	Thus, our holding in that
case merely confirms that a claim of interference can be
sustained where a junior appropriator lowers the water table in a
manner that hinders the diversion of water by a senior
appropriator. 	In spite of our use of the word “user,” instead of
the word “appropriator,” that case cannot be read to extend to
any person who puts water to use.
¶52 	The rule that a finding of interference depends on a
valid appropriation also distinguishes Salt Lake City v.
Gardner 84 and Kano v. Arcon Corp. 85 from the instant case. 	As in
Current Creek, in both Gardner and Kano we sustained claims of
interference only after first finding that the plaintiffs had
appropriated the water right at issue. 86

86 (...continued)
whether actions of appellees interfered with appellants’ water
rights).
87 The district court found all of the Group’s claims barred
by the applicable statute of limitations, not just its claim for
negligence. 	Given our disposition of the other issues in this
case, we need not determine whether the continuing tort doctrine,
or some analogous doctrine, might have operated to preserve the
Group’s other claims.
No. 20081061 	24
¶53 	We take this opportunity to clarify the boundaries of
the cause of action for interference with water rights. 	Although
our cases in this arena may not have emphasized this point in the
past, this cause of action can be invoked only by a party with an
enforceable water right. 	Our prior discussion with regard to the
nature of the North Hayden Group’s property interest makes clear
that its members have no such enforceable right with regard to
their soil saturation or the level of the water table. 	With
regard to their various water rights, the undisputed facts show
that the Group members are capable of obtaining all of the water
to which they are entitled in the same manner in which they have
been diverting it. 	As such, the district court properly granted
summary judgment in favor of the City with regard to the Group’s
interference claim.
III. 	THE DISTRICT COURT ERRED IN CONCLUDING THAT ROOSEVELT CITY
OWED NO DUTY TO THE GROUP IN ITS MANNER OF DIVERTING WATER
¶54 	The District Court incorrectly concluded that the North
Hayden Group’s negligence claim was barred by the statute of
limitations and that the City owed the Group no duty of care with
regard to the method the City used to divert water pursuant to
its established right. 	With regard to the Group’s negligence
claim, the district court granted summary judgment in favor of
the City on two alternative grounds. 	First, it held that the
Group’s claim was barred by the relevant statute of limitations.
Although the Group argued that the continuing tort doctrine
should operate to toll the statute of limitations, the district
court rejected this argument. 87 	Second, the district court
concluded that the Group’s negligence claim must fail as a matter
of law because the City owed it no duty to preserve the water
table at historic levels. 	We address each of these issues in
turn.

88 Retherford v. AT&T Commc’ns of the Mountain States, Inc.,
844 P.2d 949, 975 (Utah 1992). 	Furthermore, “‘mere ignorance of
the existence of a cause of action does not prevent the running
of the statute of limitations.’” 	Walker Drug Co. v. La Sal Oil
Co. (Walker I), 902 P.2d 1229, 1231 (Utah 1995) (quoting Warren
v. Provo City Corp., 838 P.2d 1125, 1128-29 (Utah 1992)).
89 51 Am. Jur. 2d Limitations of Actions § 168 (2000).
90 See, e.g., Cabaness v. Thomas, 2010 UT 23, ¶¶ 26-27, 232
P.3d 486 (extending the doctrine of continuing torts to a cause
of action for intentional infliction of emotional distress);
Walker I, 902 P.2d at 1233 (recognizing a cause of action for a
continuing nuisance or trespass); Peteler v. Robinson, 17 P.2d
244, 249 (Utah 1932) (recognizing a cause of action for
continuous negligent medical treatment).
25 	No. 20081061
A. 	The Group’s Claim of Negligence Is Not Barred by the Statute
of Limitations Because Roosevelt City’s Pumping of the Wells
Qualifies as a Continuing Tort
¶55 	The parties do not dispute that the drop in the water
table resulting from the City’s drilling and use of the wells was
apparent in the early 1990s. 	Based on this, the City argues that
any relevant statute of limitations has long since expired on all
of the North Hayden Group’s claims for damages related to the
drilling or pumping of the wells, and that these claims are
therefore time barred. 	The North Hayden Group asserts, however,
that the City’s ongoing pumping of the wells constitutes a
continuing tort, which exempts these claims from the otherwise
applicable statute of limitations. 	Consequently, the North
Hayden Group contends that the district court erred in concluding
that its negligence claim was barred by the applicable statute of
limitations. 	We agree.
¶56 	In general, “the statute of limitations begins to run
when the cause of action accrues.” 88 	The continuing tort
doctrine provides an exception to this general rule, tolling the
statute of limitations while the tortious conduct continues
unabated. 89 	We have recognized the continuing tort rule in a
variety of situations, including nuisance, trespass, intentional
infliction of emotional distress, and continuous negligent
medical treatment. 90 	As the district court correctly noted, none
of these decisions has yet extended the rule to a cause of action
for negligence. 	But given our recognition of this exception in
closely related claims, we agree with the North Hayden Group that
tolling a statute of limitations because of a defendant’s

91 Walker I, 902 P.2d at 1232.
92 Breiggar Props., L.C. v. H.E. Davis & Sons, Inc., 2002 UT
53, ¶ 10, 52 P.3d 1133 (citing Walker Drug Co. v. La Sal Oil Co.
(Walker II), 972 P.2d 1238, 1246 n.9 (Utah 1998)).
93 Id. ¶ 11.
94 Id.
No. 20081061 	26
continuing negligence is a natural extension of the continuing
tort doctrine.
¶57 	In the context of nuisance and trespass, we have
considered conduct to be a continuing tort where the conduct may
be discontinued at any time. 91 	Furthermore, we have classified a
trespass as either permanent or continuing by looking “solely to
the act constituting the trespass, and not to the harm resulting
from the act.” 92 	Because multiple trespasses give rise to
multiple causes of action, the statute of limitations “begins to
run anew with each act.” 93 	Accordingly, we have characterized a
trespass as “permanent” when “the act or acts of trespass have
ceased to occur,” and we have characterized a trespass as
“continuing” when “multiple acts of trespass have occurred, and
continue to occur.” 94 	Our decision today is consistent with this
principle.
¶58 	The City’s continued pumping of the wells is the
relevant conduct for purposes of determining the applicable
statute of limitations, and it is properly characterized as
continuing. 	The City argues that even if this court were to
extend the continuing tort doctrine to causes of action for
negligence, the North Hayden Group’s claim would still fail
because the Group’s damages stem from the City’s one-time
drilling of wells in an unconfined aquifer, as opposed to the
continued pumping of this aquifer. 	Thus, the City argues that
because the relevant act for purposes of determining the
applicable statute of limitations was the initial drilling of the
wells, any alleged negligence should be considered a permanent
tort, dating back to the 1990s, which is outside the applicable
statute of limitations.
¶59 	Although the drilling of the wells may have been the
City’s first contribution to the Group’s alleged harm, each time
the City pumps the wells, this harm is aggravated. 	It is not the
existence of the wells in the abstract or the way they were
drilled or designed that is allegedly negligent. 	Rather, the
Group alleges that its damages are the aggregate result of years

95 See id. ¶ 8 (“‘In the case of a continuing trespass or
nuisance, the person injured may bring successive actions for
damages until the nuisance [or trespass] is abated, even though
an action based on the original wrong may be barred, but recovery
is limited to actual injury suffered within the three years prior
to commencement of each action.’” (alteration in original)
(quoting Walker I, 902 P.2d at 1232)). 	The North Hayden Group
concedes that its recovery will be limited by this rule in this
case.
96 Johnson v. Mt. Ogden Enter., 460 P.2d 333, 336 (Utah
1969) (emphasis added).
27 	No. 20081061
of the City’s pumping water in a manner that unreasonably
disregards the potential harm that will flow to nearby
landowners. 	Further, as with other kinds of conduct that we have
held to be a continuing tort, the pumping may be discontinued at
any time and the alleged damage will be abated. 95 	Therefore, the
City’s actions are properly considered continuing rather than
permanent and the statute of limitations has been tolled. 	We
therefore reverse the portion of the district court’s judgment
that concludes that the North Hayden Group’s negligence claim was
barred by the statute of limitations.
B. 	The District Court Erred in Holding That Roosevelt City Owed
the North Hayden Group No Duty to Exercise Due Care in Extracting
Its Appropriated Water From Its Approved Point of Diversion
¶60 	The district court concluded that the City owed no duty
to the North Hayden Group. 	It found the notion inimical to
Utah’s water law, reasoning that it would permit the Group to
“control indirectly water which they had no right to control
directly.” 	We disagree with the notion that this would usurp our
laws of prior appropriation. 	Our cases have consistently
affirmed that property rights are not absolute. 	Rather, causes
of action, like negligence or nuisance, that invite judicial
review of the manner in which a party exercises its property
rights are a critical component of property law in this state.
¶61 	In the more general context of land use, we have stated
quite plainly, “every person has a right to use his own property
as he sees fit so long as that use does not invade the rights of
his neighbor unreasonably and substantially.” 96 	In another case,
where we weighed the rights of a landowner and a water rights
holder, we explained the correlative nature of property rights
and the corresponding role for courts in reviewing contests

97 N.M. Long & Co. v. Cannon-Papanikolas Constr. Co., 343
P.2d 1100 (Utah 1959).
98 Id. at 1102.
99 Id.
100 Id.
101 Id. at 1101, 1103.
102 Id.
No. 20081061 	28
between property owners. 97 	In N.M. Long & Co. v. Cannon-
Papanikolas Construction Co., we stated,
it requires little imagination to realize
that rights to use property cannot be
absolute. 	If one holds property by force
alone he is always subject to being
dispossessed by force. If he holds it by
rule of law this involves the agreement of
everyone else. To the extent they are
required to respect his rights, he must
similarly respect theirs. 98
We also observed, “[a]s populations continue to increase and
society becomes more complex, pressures increase in connection
with the use of land and resources.” 99 	This led us to conclude,
[t]he consequence of this is greater
necessity for restrictions upon the manner
in which property rights may be exercised.
Just as the right to hold, use and enjoy
property is by the collective consent of
society, as represented by the law, the law
within its proper limits may also impose
such controls thereon as are necessary in
the interest of the common welfare. 100
In that case, we held that where landowners held title to swampy
land, they should be permitted to install a drainage system to
make it possible to develop the land. 101 	We permitted the
installation of the drainage system even though it would lower
the nearby water table and negatively impact the diversion of
water for nearby holders of water rights. 102

103 See Utah Code Ann. § 73-3-23 (2009).
104 Wayman v. Murray City Corp., 458 P.2d 861, 862-63 (Utah
1969).
105 See id. at 863.
106 See id. at 862.
107 Id. at 865-66.
29 	No. 20081061
¶62 	Although in that case we upheld the actions that
lowered the water table, we find that reasoning fully applicable
to a claim to prevent actions that might lower the water table.
Indeed, whatever the pressures felt as a result of a growing
society in 1959, we believe those pressures, and the
corresponding “necessity for restrictions upon the manner in
which property rights may be exercised,” are only greater in
2010. 	What is important is not the direction the water table is
heading, but whether the actions that caused that change were
reasonable and undertaken with due care for the rights of others.
¶63 	Further, our cases involving interference with water
rights have adopted a rule of reasonableness that reflects the
necessity of weighing the values and costs associated with a
particular means of using water. 	Specifically, our statutes
grant junior appropriators the right to interfere with water
rights, if they so choose, on the condition that they bear the
cost of “replacement.” 103 	In Wayman v. Murray City, the city
increased the efficiency of its wells so that it could then
consistently draw the entire amount of water to which it was
entitled. 104 	This had the effect of diminishing the water table,
and preventing the plaintiffs in that case from obtaining their
appropriated amounts of water without modification of their
wells. 105
¶64 	The district court found that the city had impaired the
plaintiffs’ water rights and ordered that it replace the value of
the water its well would prevent the plaintiffs from taking. 106
We reversed this decision. 	Instead of requiring replacement in
all instances, we adopted a “rule of reasonableness,” under which
plaintiffs will not be eligible for replacement unless their
means of diversion are reasonable. 107 	In so holding, we stated
that “[w]hile the problem here under discussion may seem novel,
pursued to its fundamentals, it is in essence the same issue that

108 Id. at 865.
109 Id.
No. 20081061 	30
is confronted so frequently in the law: 	the right of the
individual as compared to the rights of the group . . . .” 108
¶65 	Just as each of these cases required us to examine the
competing interests of property owners, we find that the instant
case cannot be resolved by holding, as did the district court,
that the City’s right to divert its appropriated quantity of
water is absolute. 	Indeed, we believe it is apparent that if the
City had been negligently drilling its wells and its machinery
had injured someone, the mere appropriation of the water right
would not insulate the City from liability. 	Similarly,
appropriation of a water right would not immunize the City if,
while negligently pumping water from the wells, it caused nearby
land to flood. 	The mere appropriation of a water right cannot be
held to relieve the City from its obligation to exercise care in
how it obtains the water to which it is lawfully entitled.
Accordingly, we hold that the City owes, and did owe, a duty of
reasonable care to landowners who will foreseeably be harmed by
the method the City uses to obtain its water.
¶66 	We acknowledge that, in a sense, this permits the North
Hayden Group to control the City’s means of pumping, insofar as
the injured party can seek judicial review of, and relief from,
the conduct that injures it. 	But this sort of control is
inherent in the nature of property rights:
Inasmuch as . . . rights are so assured and
protected only by the authority of the
state, it is both logical and necessary that
the rights of each individual should be to
some degree subordinate to and correlated
with reasonable conditions and limitations
thereon which are established by law for the
general good. 109
¶67 	Because the City prevailed in the district court on a
motion for summary judgment, if there remain any disputed
material facts we must remand for further proceedings. 	Clearly,
key facts remain disputed in this case. 	The Group has
consistently alleged that the City could ameliorate the adverse
effects being suffered by Group members simply by drilling its
wells deeper. 	If the City did so, its wells would tap into the
confined Duchesne River Formation. 	Because this confined aquifer
is not replenished by water flowing through the soil, the Group

31 	No. 20081061
contends that the water table would naturally replenish itself
and the harms caused by the City’s mining of the Neola-Whiterocks
aquifer would abate.
¶68 	If the Group is correct, and if this alternative means
of diverting water is reasonable under the circumstances, the
Group will be able to prevail on its negligence claim. 	Whether
it is reasonable for the City to tap into the Duchesne aquifer is
an intricate issue that was not reached by the district court and
we cannot resolve it for the first time on appeal. 	The quantity
of water in the Duchesne River Formation may be insufficient to
provide the water to which the City is entitled. 	The speed with
which the Duchesne aquifer is naturally replenished may be
insufficient to meet the City’s needs. 	The costs and practical
problems associated with drilling a deeper well may also make it
unreasonable for the City to be required to do so. 	But if, as
the Group alleges, acres of farmland can be restored to
productivity by a relatively minor change to the City’s system
for extracting water, it would be unreasonable for the City not
to implement such a change.
CONCLUSION
¶69 	Although we affirm the district court’s grant of
summary judgment with regard to the Group’s takings and
interference claims, we hold that the district court erred in
granting summary judgment in favor of Roosevelt City with regard
to the Group’s negligence claim. 	First, we agree with the
district court’s conclusion that the North Hayden Group cannot
prevail on its takings claim because the Group’s interest in the
water underlying its members’ lands is insufficient to garner
protection under the relevant constitutional standards. 	Second,
although we find that the Group’s interference claim is not
barred by the Governmental Immunity Act of Utah, we affirm the
district court’s grant of summary judgment in favor of the City
on the merits of that claim. 	Finally, we hold that the district
court incorrectly concluded that the City owed no duty to the
North Hayden Group to exercise its water right in a manner that
is reasonable under the circumstances. 	We also reverse the
district court’s alternative basis for granting summary judgment-
-that the Group’s claims were barred by the statute of
limitations--because we find that the conduct forming the basis
of the Group’s complaint constituted continuing negligence
sufficient to toll the statute of limitations. 	Thus, we affirm
in part, reverse in part, and remand for further proceedings.
---

No. 20081061 	32
¶70 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.