Occasionally, the Utah Appellate Courts issue an opinion of real significance to all in the water community. Such an occasion occurred this past January when the Utah Supreme Court handed down its opinion in Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, 386 Utah Adv. Rep. 18.

In Salt Lake City v. Silver Fork Pipeline Corp., the Court addressed a myriad of issues relating to waters intercepted by mine tunnels, percolating water, diligence claims, stream adjudications, judicial estoppel, burdens of proof, adverse possession, and quiet title issues. In a contest between Salt Lake City, which holds virtually all of the Big Cottonwood Creek water rights, and cabin owners who utilized water flowing out of a mine tunnel in Big Cottonwood Canyon, the Court concluded that waters intercepted by mine tunnels in Big Cottonwood Canyon are tributary to Big Cottonwood Creek above Salt Lake City's point of diversion, rather than being nontributary "developed water." This being the case, the Court ruled that the city had an interest in the water it diverts, clear back to its various sources, including the sources intercepted by the mine tunnel. The Court methodically addressed, and rejected, each of the arguments made by the pipeline company to gain a right or position superior to that of the city.

Interception of Water by Mine Workings

While it would more than exhaust this entire newsletter to fully discuss all of the issues in this opinion, we will note several of importance. First, the Court's treatment of a water right holder's interest in all sources of his water is worth noting. The Court's decision reinforced water right holders' protection from interference by non-natural mines, tunnels, etc., that may diminish quantity or quality of water reaching their point of diversion. The Court found that interception of .5 cfs via the mine tunnel constituted substantial interference since it "is reasonable to infer that Salt Lake has suffered, or will eventually suffer a diminution in its water right. . . ." The Court's use of "or will eventually suffer" is significant: it suggests a broadening of the protection afforded to water right holders, allowing them to protect future diminishment of quality or quantity.

Prevention/Avoidance of Forfeiture

A second issue worth noting is the Court's allowing even unlawful water diversion to prevent forfeiture. For many years, Salt Lake City had sold the mine tunnel water to Silver Fork Pipeline Corp. or its predecessor. Salt Lake City, however, had never filed a change application to divert the water at the tunnel. The Court brushed aside the argument that Salt Lake had forfeited the illegally diverted water, once again confirming the rather surprising concept that an illegal use of water is better than no use at all.

Percolating Waters are Public Waters

Third and finally, the Court clarified the rule that percolating waters have always been owned by the public despite statements to the contrary in prior opinions. Such percolating waters were available for appropriation prior to 1935 and Salt Lake City did in fact appropriate percolating water, naturally tributary to Big Cottonwood Creek, intercepted in the mine tunnel.

The Court, in extensive footnotes, provides a good summary of Utah case law on several of these issues, making this decision a convenient Utah water law resource.

Any comments or questions can be directed to the author at (801) 413-1600 or by e-mail at jcsmith@smithlawonline.com.

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