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[Utah Code Table of Contents]
[TITLE 73. Table of Contents]
73-4-1 By engineer on petition of users - Upon request of Department of Environmental Quality.
(1) Upon a verified petition to the state engineer, signed by five or more or a majority of water users upon any stream or water source, requesting the investigation of the relative rights of the various claimants to the waters of such stream or water source, it shall be the duty of the state engineer, if upon such investigation he finds the facts and conditions are such as to justify a determination of said rights, to file in the district court an action to determine the various rights. In any suit involving water rights the court may order an investigation and survey by the state engineer of all the water rights on the source or system involved.
(2) (a) As used in this section, "executive director" means the executive director of the Department of Environmental Quality.
(b) The executive director, with the concurrence of the governor, may request that the state engineer file in the district court an action to determine the various water rights in the stream, water source, or basin for an area within the exterior boundaries of the state for which any person or organization or the federal government is actively pursuing or processing a license application for a storage facility or transfer facility for high-level nuclear waste or greater than class C radioactive waste.
(c) Upon receipt of a request made under Subsection (2)(b), the state engineer shall file the action in the district court.
(d) If a general adjudication has been filed in the state
district court regarding the area requested pursuant to Subsection
(2)(b), the state engineer and the state attorney general
shall join the United States as a party to the action.
2001
73-4-2 Interstate streams.
For the purpose of co-operating with the state engineers
of adjoining states in the determination and administration
of rights to interstate waters and for such other purposes
as he may deem expedient, the state engineer, with the approval
of the executive director and the governor, is authorized
to initiate and to join in suits for the adjudication of
such rights in the federal courts and in the courts of other
states without requiring a petition of water users as provided
by Section
73-4-1
. The state engineer, with the approval of the
executive director and the governor, may also commence, prosecute
and defend suits to adjudicate interstate waters on behalf
of this state or its citizens in the courts of other states,
in federal courts, and in the Supreme Court of the United
States.
1969
73-4-3 Procedure for action to determine rights - Notice to and list of claimants - Manner of giving notice of further proceedings - Duties of engineer - Survey - Notice of completion.
Upon the filing of any action by the state engineer as
provided in Section
73-4-1
, or by any person or persons claiming the right
to the use of the waters of any river system, lake, underground
water basin, or other natural source of supply, which involves
a determination of the rights to the major part of the water
of such source of supply or the rights of ten or more of
the claimants of such source of supply, the clerk of the
district court shall notify the state engineer that such
suit has been filed. The state engineer then shall give notice
to the claimants by publishing notice once a week for two
consecutive weeks in a newspaper designated by the court
as most likely to give notice to such claimants. The notice
shall set forth that: such an action has been filed; the
name of the action and the name and location of the court
in which the action is pending; the name or description of
the water source involved; and shall require claimants to
the use of water therefrom to notify the state engineer within
90 days from the date notice is given of their names and
addresses. After the expiration of 90 days the state engineer
shall prepare a list which shall include the names and addresses
of all claimants then of record in his office and all claimants
who have notified the state engineer of their addresses,
and this list shall be certified by the state engineer as
complete and filed with the clerk of the court. The court
upon petition may by order permit the addition of names and
addresses to this list at any time during the pendency of
the action, and the clerk of the court may, without court
order, upon notice from the claimant note any change of address.
If any claimant appears in this action by an attorney, the
clerk shall note on the list the address of the attorney.
After the list is filed by the state engineer, notice of
further proceedings, after service of summons, may be given
without court order by mailing a copy thereof to the persons
listed at the addresses listed and by mailing a copy thereof
to any attorney of record for any such person, and notice
may be given to such listed persons and to all other claimants
by publication in the manner and for the time prescribed
by order of the district court. When such statement or list
shall have been filed, the state engineer shall begin the
survey of the water source and the ditches, canals, wells,
tunnels, or other works diverting water therefrom; and as
soon as this survey has been completed, the state engineer
shall file notice of completion with the clerk and give notice
by registered mail or by personal service to all claimants
whose names appear on the list that the survey has been completed
and that their claims are due within 90 days from the date
of notice, and within 90 days after such service of such
notice each claimant must file a written statement with the
clerk of the court setting forth his respective claim to
the use of such water. Notice given by mail shall be complete
when the notice is mailed. When such a suit has been filed
by the state engineer as provided by Section
73-4-1
, or by any person or persons involving the
major part of the waters of any river system, lake, underground
water basin, or other source of supply, or the rights of
ten or more of the water claimants of such source of supply,
whether such suit is filed prior to or after the enactment
hereof, it shall be the duty of the state engineer upon receiving
notice thereof to examine the records of his office with
respect to the water source involved, and if they are incomplete
to make such further investigation and survey as may be necessary
for the preparation of the report and recommendation as required
by Section
73-4-11
. In all such cases the court shall proceed
to determine the water rights involved in the manner provided
by this chapter, and not otherwise.
1979
73-4-4 Summons - Service - Publication - Form - Delivery of form for claimant's statement.
Claimants whose names appear on the list prescribed by the next preceding section at the time the list is filed by the state engineer with the clerk of the court shall be served with a summons issued out of the district court and served as a summons is served in other civil cases. Upon the filing by the state engineer of an affidavit that he has searched the records of his office and has listed all names as required by Section 73-4-3 , and upon proof of publication of notice to all claimants to notify the state engineer of their names and addresses, summons may be served on all other persons and claimants not listed on said list by publication of summons, in a newspaper or newspapers designated by the judge of the court as most likely to give notice to the persons served, five times, once each week for five successive weeks. Service of summons to be completed upon the date of the publication. The summons in such cases shall be substantially in the following form:
In the District Court of .......... County, State of Utah, in the matter of the general adjudication of water rights in the described water source. SUMMONS
The State of Utah to the said defendant:
You are hereby summoned to appear and defend the above entitled action which is brought for the purpose of making a general determination of the water rights of the described water source. Upon the service of this summons upon you, you will thereafter be subject to the jurisdiction of the entitled court and it shall be your duty to follow further proceedings in the above entitled action and to protect your rights therein. When the state engineer has completed his survey you will be given a further written notice, either in person or by registered mail, sent to your last known address, that you must file a water users claim in this action setting forth the nature of your claim, and said notice will specify the date upon which your water users claim is due and thereafter you must file said claim within the time set and your failure so to do will constitute a default in the premises and a judgment may be entered against you declaring and adjudging that you have no right in or to the waters of described water source.
At the time the said notice of completion of survey is
given, the state engineer must mail or otherwise deliver
a form upon which the claimant shall present in writing,
as provided in the next succeeding section, all the particulars
relating to the appropriation of the water of said river
system or water source to which he lays claim.
1953
73-4-5 Statements by claimants.
Each person claiming a right to use any water of such
river system or water source shall, within ninety days after
the completed service of the notice of completion of survey
prescribed by Section
73-4-3
hereof, file in the office of the clerk of
the district court a statement in writing which shall be
signed and verified by the oath of the claimant, and shall
include as near as may be the following: The name and post-office
address of the person making the claim; the nature of the
use on which the claim of appropriation is based; the flow
of water used in cubic feet per second or the quantity of
water stored in acre-feet, and the time during which it has
been used each year; the name of the stream or other source
from which the water is diverted, the point on such stream
or source where the water is diverted, and the nature of
the diverting works; the date when the first work for diverting
the water was begun, and the nature of such work; the date
when the water was first used, the flow in cubic feet per
second or the quantity of water stored in acre-feet, and
the time during which the water was used the first year;
and the place and manner of present use; and such other facts
as will clearly define the extent and nature of the appropriation
claimed, or as may be required by the blank form which shall
be furnished by the state engineer under the direction of
the court.
1953
73-4-6 In case of use for irrigation.
If the water claimed to have been appropriated is used
for irrigation, the statement shall show, in addition to
the facts required by Section
73-4-5
, as nearly as possible the area of land irrigated
the first year and each subsequent year; the total area irrigated
at the time of filing and its location in each section, township
and range wherein it is situated; the character and depth
of the soil, the kind of crops raised and the maximum and
minimum acreage irrigated during the total period of use.
1953
73-4-7 In case of use for power purposes.
If the water claimed to have been appropriated is used
for developing power, the statement shall show, in addition
to the facts required by Section
73-4-5
, the number, size and kind of water wheels
employed; the head under which each wheel is operated; the
amount of power produced, and the purposes for which and
the places where it is used; and the point where the water
is returned to the natural stream or source.
1953
73-4-8 In case of use for mining or milling.
If water claimed to have been appropriated is used for
milling or mining, the statement shall show, in addition
to the facts required by Section
73-4-5
, the name of the mill and its location, or
the name of the mine and the mining district in which it
is situated; the nature of the material milled or mined,
and the point where the water is returned to the natural
stream or source.
1953
73-4-9 Failure to file statement - Relief.
The filing of each statement by a claimant shall be considered
notice to all persons of the claim of the party making the
same, and any person failing to make and deliver such statement
of claim to the clerk of the court within the time prescribed
by law shall be forever barred and estopped from subsequently
asserting any rights, and shall be held to have forfeited
all rights to the use of the water theretofore claimed by
him; provided, that any claimant, upon whom no other service
of said notice shall have been made than by publication in
a newspaper, may apply to the court for permission to file
a statement of claim after the time therefor has expired,
and the court may extend the time for filing such statement,
not exceeding six months from the publication of said notice;
but, before said time is extended, the applicant shall give
notice by publication in a newspaper having general circulation
on such river system or near the water source to all other
persons interested in the water of such river system or water
source, and shall make it appear to the satisfaction of the
court that during the pendency of the proceedings he had
no actual notice thereof in time to appear and file a statement
and make proof of his claim; and all parties interested may
be heard as to the matter of his actual notice of the pendency
of such proceedings.
1953
73-4-10 Amendment of pleadings - Extensions of time.
The court shall have power to allow amendments to any
petition, statement or pleading; to extend as provided in
this title the time for filing any statement of claim; and
to extend, upon due cause shown, the time for filing any
other pleading, statement, report or protest.
1953
73-4-11 Report and recommendation by engineer to court.
Within thirty days after the expiration of the 60 days allowed for filing statements of claims, the state engineer shall begin to tabulate the facts contained in the statements filed and to investigate, whenever he shall deem necessary, the facts set forth in said statements by reference to the surveys already made or by further surveys, and shall as expeditiously as possible make a report to the court with his recommendation of how all rights involved shall be determined.
After full consideration of the statements of claims,
and of the surveys, records, and files, and after a personal
examination of the river system or water source involved,
if such examination is deemed necessary, the state engineer
shall formulate a report and a proposed determination of
all rights to the use of the water of such river system or
water source, and a copy of the same shall be mailed by regular
mail to each claimant with notice that any claimant dissatisfied
therewith may within ninety days from such date of mailing
file with the clerk of the district court a written objection
thereto duly verified on oath. The state engineer shall distribute
the waters from the natural streams or other natural sources
in accordance with the proposed determination or modification
thereof by court order until a final decree is rendered by
the court; provided, if the right to the use of said waters
has been theretofore decreed or adjudicated said waters shall
be distributed in accordance with such decree until the same
is reversed, modified, vacated or otherwise legally set aside.
1953
73-4-12 Judgment - In absence of contest.
If no contest on the part of any claimant shall have been
filed, the court shall render a judgment in accordance with
such proposed determination, which shall determine and establish
the rights of the several claimants to the use of the water
of said river system or water source; and among other things
it shall set forth the name and post-office address of the
person entitled to the use of the water; the quantity of
water in acre-feet or the flow of water in second-feet; the
time during which the water is to be used each year; the
name of the stream or other source from which the water is
diverted; the point on the stream or other source where the
water is diverted; the priority date of the right; and such
other matters as will fully and completely define the rights
of said claimants to the use of the water.
1953
73-4-13 In case of contest - Notice of hearing.
If any contest or objection on the part of any claimant
shall have been filed, as in this chapter provided, the court
shall give not less than fifteen days' notice to all claimants,
stating when and where the matter will be heard.
1953
73-4-14 Pleadings - Expert assistance for court.
The statements filed by the claimants shall stand in the
place of pleadings, and issues may be made thereon. Whenever
requested so to do the state engineer shall furnish the court
with any information which he may possess, or copies of any
of the records of his office which relate to the water of
said river system or water source. The court may appoint
referees, masters, engineers, soil specialists or other persons
as necessity or emergency may require to assist in taking
testimony or investigating facts, and in all proceedings
for the determination of the rights of claimants to the water
of a river system or water source the filed statements of
claimants shall be competent evidence of the facts stated
therein unless the same are put in issue.
1953
73-4-15 Judgment after hearing.
Upon the completion of the hearing, after objections filed,
the court shall enter judgment which shall determine and
establish the rights of the several claimants to the use
of the water of the river system or water source as provided
in Section
73-4-12
.
1953
73-4-16 Appeals.
From all final judgments of the district court there shall
be a right of appeal to the Supreme Court as in other cases.
The appeal shall be upon the record made in the district
court, and may as in equity cases be on questions of both
law and fact. All proceedings on appeal shall be conducted
according to the provisions of the Code of Civil Procedure.
1953
73-4-17 Certified copy of final judgment - Filing.
Within thirty days after the entry of final judgment of
the district court, or if an appeal is taken from a district
court judgment, within thirty days after the final judgment
on remittitur is entered, it shall be the duty of the clerk
of the district court to deliver to the state engineer a
certified copy of such judgment and to cause a certified
copy thereof to be filed with the county recorder of each
county in which the water adjudicated is diverted from its
natural source and of each county where the water is applied.
No filing fee shall be charged by either the state engineer
or the county recorder.
1992
73-4-18 General determination in court's discretion - State to be made a party.
Whenever any civil action is commenced in the district
court involving fewer than ten water claimants or less than
the major part of the rights to the use of water from any
river system, lake, underground water basin, or other source,
the court in its discretion may, if a general determination
of the rights to the use of water from said water source
has not already been made, proceed, as in this chapter provided,
to make such a general determination. In any such action
for the determination of water rights the state of Utah shall
be joined as a necessary party.
1953
73-4-19 Redetermination - Bond of applicant.
Wherever a general determination of water rights upon
any river system or water source has been made by the district
court, any claimant to the use of water from such river system
or water source seeking a redetermination of water rights
upon such river system or water source shall, before commencing
any action for such redetermination or for the revision of
any final judgment other than as provided in Section
73-4-1
, furnish to the court in which such action
is commenced and before the filing of any petition or complaint
for such purpose, a good and sufficient bond, in a form and
with sureties approved by the court, in a sum fixed by the
court at least equal to twice the estimated costs which may
arise in such action, conditioned that if final judgment
after hearing, or after appeal should appeal be taken, is
awarded against such claimant, then such claimant will pay
all costs arising in such action and all damages to other
parties thereto arising therefrom.
1953
73-4-20 Revolving fund - Money expended not assessable against water users - Transfer of unexpended money to adjudication fund - Payment of costs of determinations - Money expended from adjudication fund not assessable against water users - Surplus to remain in adjudication fund.
Money heretofore expended from the state engineer's revolving
fund in pending adjudications shall not be assessable against
the water users. All money remaining and unexpended in the
state engineer's revolving fund as of July 1, 1953, including
money appropriated to the revolving fund for the biennium
ending June 30, 1955, shall be transferred to a fund of the
state engineer to be known as the adjudication fund. The
revolving fund shall be closed out upon such transfer of
money. The state engineer shall pay all costs of determinations
with money appropriated to the office of the state engineer
and deposited in the adjudication fund and with money transferred
to such fund as provided above. The money expended from such
fund shall not be assessable against the water users. Any
money remaining in such fund at the end of the biennium shall
not revert to the general fund but shall remain in the adjudication
fund until expended.
1953
73-4-21 Duty to follow court proceedings - Additional notice.
After the service of summons in the manner prescribed
by Section
73-4-4
hereof, it shall be the duty of every person
served to thereafter follow all court proceedings and no
further or additional notice shall be required except the
notice that the survey has been completed and the water users
claim is due as prescribed by Section
73-4-3
, and notice of the proposed determinations
as provided by Section
73-4-11
. The district court may, however, require notice
of other proceedings to be given when, in the judgment of
the court, it deems notice necessary.
1953
73-4-22 State engineer's duty to search records for and serve summons on claimants - Filing of affidavit - Publication of summons - Binding on unknown claimants.
The state engineer, throughout the pendency of proceedings,
shall serve summons in the manner prescribed by Section
73-4-4
upon all claimants to the use of water in the
described source embraced by said action, whenever the names
and addresses of said persons come to the attention of the
state engineer. The names and addresses of such persons so
served shall be added to the list prescribed by Section
73-4-3
hereof. Immediately after the notice of the
proposed determination is given, in accordance with Section
73-4-11
hereof, the state engineer shall diligently
search for the names and addresses of any claimants to water
in the source covered by the proposed determination who have
not been previously served with summons other than by publication,
and any such persons located shall forthwith be served with
summons, and after the state engineer has exhausted his search
for other claimants he shall make such fact known to the
district court by affidavit and the clerk of the district
court shall again publish summons five times, once each week,
for five successive weeks which said service shall be binding
upon all unknown claimants.
1953
73-4-23 Effective date of amendatory act - Application to pending suits - State engineer's certificate.
This act shall be effective sixty days from its enactment
and shall apply to all suits now pending under Title 73,
Chapter 4, Utah Code Annotated 1953, except those proceedings
under which the state engineer has by the effective date
hereof completed his survey, and it is expressly provided
that those actions where the state engineer has by the effective
date of this act completed his survey may proceed to completion
under the procedure prescribed by the statutes heretofore
existing. The state engineer shall within ten days after
the effective date of this act file with the clerk of the
court in each action then pending under Title 73, Chapter
4, Utah Code Annotated 1953, a certificate under the seal
of his office stating whether or not he has completed the
survey so that all persons will have notice and can know
whether or not this act is applicable to such existing suit.
1953
73-4-24 Dispute involving rights of less than all parties to general suit - Petition - Notice - Hearing and determination - Interlocutory decree.
If, during the pendency of a general adjudication suit,
there shall be a dispute involving the water rights of less
than all of the parties to such suit, any interested party
may petition the district court in which the general adjudication
suit is pending to hear and determine said dispute. All persons
who have a direct interest in said dispute shall be given
such notice as is required by order of the district court
and in addition thereto the district court shall require
that notice of the initial hearing on said dispute be given
by publication at least once each week for two successive
weeks in newspapers reasonably calculated to give notice
to all water users on the system. Thereafter the court may
hear and determine the dispute and may enter an interlocutory
decree to control the rights of the parties, unless modified
or reversed on appeal, until the final decree in the general
adjudication suit is entered. At that time the district court
may after hearing make such modifications in the interlocutory
decree as are necessary to fit it into the final decree without
conflict.
1953
