Otter Creek v. New Escalante

2009 UT 16
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Otter Creek Reservoir Company, No. 20060942
a Utah corporation; Richfield
Irrigation Canal Company, a Utah
corporation; Sevier Valley Canal
Company, a Utah corporation;
Monroe South Bend Company, a Utah
corporation; Monroe Irrigation
Company, a Utah corporation;
Elsinore Canal Company, a Utah
corporation; Annabella Irrigation
Company, a Utah corporation;
Brooklyn Canal Company, a Utah
corporation; Joseph Irrigation
Company, a Utah corporation;
Vermillion Irrigation Company, a
Utah corporation; and Piute
Reservoir and Irrigation Company,
a Utah corporation;
Plaintiffs and Appellant,
v.
New Escalante Irrigation Company, F I L E D
a Utah corporation,
Defendant and Appellee. March 3, 2009
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Sixth District, Junction Dep’t
The Honorable David Mower
No. 01060014
Attorneys: Kay L. McIff, Richard K. Chamberlain, Richfield, for
appellant
Steven E. Clyde, Edwin C. Barnes, James P. Alder,
Christopher B. Snow, Salt Lake City, for appellee
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PARRISH, Justice:

1 A diligence right is a water right acquired by putting
water to beneficial use prior to 1903, the year in which Utah
water law first required prospective appropriators to file
applications with the state engineer. See Yardley v. Swapp, 364
P.2d 4, 6 (Utah 1961).
No. 20060942 2
INTRODUCTION
¶1 Prior to 1939, water rights in Utah could be obtained
through seven years of “continuous, uninterrupted, hostile,
notorious, adverse [use].” In re Use of Water Within Drainage
Area of Green River, 363 P.2d 199, 201 (Utah 1961). In 1939, the
Utah Legislature amended Utah water law to bar the acquisition of
water rights by adverse use. 1939 Utah Laws 148 (“No right to
the use of water either appropriated or unappropriated can be
acquired by adverse use or adverse possession.”). In this
appeal, we are asked to determine whether a water right can be
acquired by adverse use if the seven years of adverse use began
before 1939 but were not completed until after 1939. We hold
that the seven years of adverse use must have been completed
prior to the effective date of the 1939 amendment.
BACKGROUND
¶2 This case involves two competing claims to snow melt in
Iron Springs Draw, which is located near the divide between the
Sevier River drainage and the Escalante River drainage. Left to
its natural course, the water would eventually flow into the East
Fork of the Sevier River, which forms part of the water supply of
plaintiffs (collectively, “Otter Creek”). New Escalante
Irrigation Company (“New Escalante”) claims that since the late
1800s, it has maintained a ditch that intercepts the water and
carries it across the divide and into the Escalante River
drainage. For the purposes of this appeal, New Escalante claims
that it has been adversely using the water against Otter Creek
since December 1, 1936, the day after the issuance of the Cox
Decree, which adjudicated all water rights in the Sevier River
drainage.
¶3 In 2001, Otter Creek filed an action in the Sixth
District Court, seeking (1) a declaratory judgment that New
Escalante had no right to use the water, (2) an injunction
against further diversion or use of the water, (3) an order
requiring New Escalante to fill the Iron Spring ditch, and (4)
damages. New Escalante counterclaimed, arguing that it had a
diligence right1 to the water or, in the alternative, that it had
a superior right based on adverse use. Both sides filed motions
for summary judgment.

2 Despite the dissent’s suggestion to the contrary, whether
the Cox Decree affected New Escalante’s water rights is not
before us on interlocutory appeal. Rather, New Escalante has
indicated in its briefing before this court only that it
“disagrees with this ruling and has preserved it for [later]
appeal if necessary.”
3 No. 20060942
¶4 In a memorandum decision, the district court granted
Otter Creek’s summary judgment motion regarding the diligence
claim, holding that New Escalante had forfeited its rights
because it had not participated in the Cox Decree.2 However, the
court acknowledged that New Escalante had begun adversely using
the water on December 1, 1936--the day after the Cox Decree was
issued. The court then made the legal ruling that is at issue on
appeal: “[A] right initiated before 1939 could still ripen into
[an] adverse possession claim after 1939.” The court accordingly
denied Otter Creek’s motion for summary judgment on the adverse
use claim, concluding that because New Escalante’s adverse use
began in 1936, its use could ripen into a water right if it could
prove the necessary elements of adverse use. Following the
district court’s memorandum decision, Otter Creek filed a
petition for interlocutory appeal on the narrow issue of whether
a water right can be acquired by adverse use if the seven-year
period required to maintain an adverse use claim was commenced,
but not completed, when the legislature statutorily abolished
adverse possession of water rights in 1939. We granted the
petition.
STANDARD OF REVIEW
¶5 This court reviews the “district court’s
‘interpretation and application of a statute’ for correctness,
‘affording no deference to the district court’s legal
conclusion.’” Wasatch Crest Ins. Co. v. LWP Claims Adm’rs Corp.,
2007 UT 32, ¶ 6, 158 P.3d 548 (quoting Gutierrez v. Medley, 972
P.2d 913, 914-15 (Utah 1998)).
ANALYSIS
I. APPROPRIATION AND ADVERSE USE
¶6 We begin our analysis with a brief historical review of
appropriation and adverse use of water in Utah. Under Utah’s
territorial laws, a statutory provision recognized the vesting of
a water right “[w]henever any person or persons shall have had
the open, peaceable, uninterrupted and continuous use of water
for a period of seven years.” Compiled Laws of Utah § 2780, s.6

No. 20060942 4
(1888). Case law applying section 2780 construed it as
establishing a right to obtain title by adverse use. See, e.g.,
Ephraim Willow Creek Irr. Co. v. Olson, 258 P. 216, 218 (Utah
1927). Following statehood, the Utah Legislature repealed the
statute containing the adverse use provision with an
appropriation statute. 1897 Utah Laws 219 (“The rights to the
use of any of the unappropriated waters of the State may be
acquired by appropriation.”). An adverse use statute never again
appears in Utah statutory law. Wellsville E. Field Irr. Co. v.
Lindsay Land & Livestock Co., 137 P.2d 634, 655 (Utah 1943)
(Hoyt, D.J., concurring in part and dissenting in part)
(“[Section 2780] was repealed in 1897 and has not since been
reenacted either in substance or effect.”).
¶7 In 1903, the legislature enacted a new act to govern
the appropriation and use of water. See 1903 Utah Laws 88-107.
The new act amended the appropriation statute to state that water
rights could be acquired only by following the proper
appropriation procedure, which included filing an application to
appropriate with the state engineer. Id. at 97 (“Rights to the
use of any of the unappropriated water in the State may be
acquired by appropriation, in the manner hereinafter provided,
and not otherwise.”); id. at 98 (requiring a prospective
appropriators to first file an application with the state
engineer). The wording of the appropriation statute was again
changed in 1935, but the meaning of the statute remained the
same: rights to unappropriated public water could be acquired
only by first filing an application with the state engineer.
1935 Utah Laws 196.
¶8 Although the statutory scheme clearly prohibited the
acquisition of water rights to unappropriated water by adverse
use, the question remained whether previously appropriated water
rights could be obtained through adverse use. This court
answered the question in 1937, holding that “as between private
claimants, water rights in Utah can be acquired by adverse use[]
and possession.” Hammond v. Johnson, 66 P.2d 894, 900-01 (Utah
1937). The decision was clear but short-lived. The 1939
legislature closed the door on Hammond by amending the
appropriation statute to include the following sentence: “No
right to the use of water either appropriated or unappropriated
can be acquired by adverse use or adverse possession.” 1939 Utah
Laws 148. This exact language still appears in the current
appropriation statute. See Utah Code Ann. § 73-3-1 (1989).
Thus, since 1939, water rights in Utah cannot be obtained by
adverse use. See Coll. Irr. Co. v. Logan River & Blacksmith Fork
Irr. Co., 780 P.2d 1241, 1243 n.2 (Utah 1989) (“The 1939
amendment . . . abolished the doctrine of adverse use of
water.”).

5 No. 20060942
II. LANGUAGE FROM PRIOR CASES
¶9 This court has never squarely addressed the issue of
whether an adverse user can successfully obtain an adverse use
right if the adverse use period began before 1939 but was not
completed until after 1939. Our prior cases contain dicta that
seem to support both sides of the argument. In Wellsville East
Field Irrigation Co. v. Lindsay Land & Livestock Co., we stated
that “title could between 1903 and 1939 be acquired by adverse
possession,” thereby implying that adverse use title could not
vest after 1939. 137 P.2d 634, 640 (Utah 1943) (emphasis added).
But in Mitchell v. Spanish Fork West Field Irrigation Co., we
stated that “[p]laintiff’s claim to the waters in question is
based on [being an] adverse user from 1899 to 1939; since which
date the initiation of water rights by this method has been
precluded by statute.” 265 P.2d 1016, 1019 (Utah 1954) (emphasis
added). This language suggests that the 1939 amendment
prohibited only claims for which the adverse use had commenced
after 1939, but allowed adverse use claims where the adverse use
began prior to that date. A few years later, however, our
language in In re Drainage Area of Bear River suggested that the
seven years of adverse use must have been completed by 1939. 361
P.2d 407 (Utah 1961). In that case, we stated that “appellants
could acquire water rights by adverse use only by continuous
adverse use for seven years after the 1919 decree and before the
1939 statute.” Id. at 410.
¶10 The apparent confusion caused by our dicta is shown by
the fact that two commentaries on Utah law relied on our cases to
reach opposite conclusions on the issue. According to Summary of
Utah Real Property Law, the effect of the 1939 amendment was that
“any possible claims of a right arising by adverse use must have
matured before the 1939 amendment to the Code.” 2 Brigham Young
Univ. Legal Studies, Summary of Utah Real Property Law 618
(1978). In a separate article, A Primer of Utah Water Law,
Robert W. Swenson reached the opposite conclusion, stating that
“[t]he supreme court . . . indicated that adverse use which had
commenced prior to 1939 could ripen into title after the
effective date of the act.” Robert W. Swenson, A Primer of Utah
Water Law: Part I, 5 J. Energy L. & Pol’y 165, 190 (1984).
¶11 Our most recent dicta concerning the issue came in Salt
Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, 5 P.3d 1206.
In footnote 19 of Silver Fork, we stated:
Before 1939, Utah law allowed a party to
obtain title to use of water by adverse
possession. See Hammond v. Johnson, 94 Utah

3 The district court also recognized that footnote 19 is
dicta but found it “helpful in trying to predict how the Supreme
Court would rule on the issue.”
No. 20060942 6
20, 28, 66 P.2d 894, 900-01 (1937).
Following an amendment to Utah’s Water Code
in 1939, adverse use that began before 1939
could still ripen into title after the
effective date of the Act. See Mitchell v.
Spanish Fork West Field Irr. Co., 1 Utah 2d
313, 317, 265 P.2d 1016, 1019 (1954);
Wellsville East Field Irr. Co. v. Lindsay
Land & Livestock Co., 104 Utah 448, 460-66,
137 P.2d 634, 640 (1943). However, adverse
use commenced after the effective date of the
[A]ct could not ripen into title by adverse
possession: “No right to the use of water
either appropriated or unappropriated can be
acquired by adverse use or adverse
possession.” 1939 Utah Laws ch. 111, § 1.
Id. ¶ 46 n.19.
¶12 Although the language of Silver Fork is ostensibly
clear, it is only dicta. In that case, Silver Fork Pipeline
Company argued that if its adverse use commenced prior to 1939,
the adverse use right could vest after 1939. Salt Lake City did
not argue whether Silver Fork’s legal analysis was correct.
Rather, Salt Lake City argued that even under Silver Fork’s
interpretation, no adverse use right arose because the adverse
use by Silver Fork’s predecessor did not begin until the 1940s.
Because the actual interpretation of the 1939 amendment was never
squarely before the court, the language of footnote 19 was an
unexamined assumption that is not instructive in our decision in
the present case.3
¶13 Because our prior language is both contradictory and
nonbinding dicta, we reject our prior statements and construe the
statute anew, beginning with its plain language.
III. PLAIN LANGUAGE
¶14 “Under our established rules of statutory construction,
we look first to the plain meaning of the pertinent language in
interpreting [a statute]; only if the language is ambiguous do we
consider other sources for its meaning.” Fla. Asset Fin. Corp.
v. Utah Labor Comm’n, 2006 UT 58, ¶ 9, 147 P.3d 1189. In this
case, the 1939 amendment to the appropriation statute is clear on

7 No. 20060942
its face; thus, we rely solely on the statutory language in
reaching our decision.
¶15 The 1939 amendment reads as follows: “No right to the
use of water either appropriated or unappropriated can be
acquired by adverse use or adverse possession.” 1939 Utah Laws
148 (emphasis added). Adverse use rights are not “acquired” when
the adverse use begins; rather, adverse use rights are acquired
only after seven years of continuous use. See Coll. Irr. Co. v.
Logan River & Blacksmith Fork Irr. Co., 780 P.2d at 1243-44 (“The
elements of proof necessary to acquire a prescriptive right to
water are seven years of continuous, uninterrupted, hostile,
notorious, and adverse enjoyment under a claim of title . . . .”
(emphasis added)); Wellsville E. Field Irr. Co. v. Lindsay Land &
Livestock Co., 137 P.2d 634, 640 (“[T]itle could be acquired by
seven years of open, peaceable, uninterrupted and continuous
use.” (emphasis added)); Smith v. N. Canyon Water Co., 52 P. 283,
286 (Utah 1898) (“The right . . . in the water would become fixed
only after seven years’ continuous, uninterrupted, hostile,
notorious, adverse enjoyment . . . .” (emphasis added)).
¶16 Because the statute states that no adverse use right
can be acquired after 1939, and because an adverse use right is
not acquired until after seven years of adverse use, it follows
that the seven years of adverse use must have been completed
before 1939. By using the word “acquired” rather than
“initiated” or “begun,” the legislature provided that no adverse
use rights could vest after 1939, even if the adverse use had
begun prior to that date. We therefore reverse the legal
determination of the district court and hold that an adverse user
must have completed seven years of adverse use before the
effective date of the 1939 amendment in order to satisfy the
requirements of a claim for adverse use. Any adverse use
initiated but not completed by 1939 was cut off by the 1939
amendment and could not develop into an adverse use right.
CONCLUSION
¶17 The plain language of the 1939 amendment reveals that
the seven years of adverse use necessary to acquire an adverse
use right must have been completed prior to the effective date of
the amendment. We therefore reverse the legal determination of
the district court and remand for further proceedings consistent
with this determination.
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¶18 Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur with Justice Parrish’s opinion.

No. 20060942 8
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WILKINS, Justice, dissenting:
¶19 I respectfully disagree with the conclusion reached by
my colleagues. I would affirm the trial court’s ruling.
¶20 On the record before us, New Escalante Irrigation
Company has been using the water source in contest for more than
a century. Beginning in 1890, or earlier, and continuing until
2001, New Escalante’s use of the water was open, peaceable,
uninterrupted, and continuous. Not until 2001, with the filing
of the present action by Otter Creek Reservoir Company and the
other plaintiffs, was that use contested.
¶21 When New Escalante’s predecessor in interest commenced
use of the water, the law of the Utah territory allowed such a
use to mature into a right to the water so used, so long as the
use was open, peaceable, uninterrupted, and continuous. Compiled
Laws of Utah § 2780, s.6 (1888). Upon statehood, the legislature
enacted a statutory restriction on the acquisition of new water
rights by adverse possession. 1897 Utah Laws 219. However,
neither that statute nor any since enacted purported to
extinguish existing water rights. Moreover, the right then held
by New Escalante was not a right taken, by adverse possession or
otherwise, from another water user. Consequently, restrictions
to be imposed under the statutory scheme on newly acquired water
rights were ineffective against existing rights.
¶22 The direct consequences on this dispute of the general
water adjudication case that resulted in the Cox Decree have not
as yet been presented for our review. However, on the theory
that the Cox Decree cut off the New Escalante right, the trial
court, and my colleagues, construct an analytical strawman using
the assumption that the use of the water at issue by New
Escalante could only have begun after the Cox Decree, and that
the time from the Cox Decree to the 1939 statutory prohibition on
adversely acquired water rights is the critical focus of our
analysis. It is here that I most differ with my colleagues.
¶23 On the facts before the trial court, New Escalante’s
use of the water at issue began prior to 1890, and was fully
perfected. The Cox Decree had no impact on the legitimacy of the
New Escalante use. The presumption that legitimacy could only be
achieved through an adverse use claim arising after the Cox
Decree is mistaken. The New Escalante right was clearly
established at the time, and continues to this day to enjoy
enforceable legitimacy. I would therefore affirm the trial

9 No. 20060942
court’s decision, but on the grounds that the century old right
had been established and maintained by New Escalante according to
law prior to both the Cox Decree and the 1939 statutory change.
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