Showdown at Geddes Gulch: How Prior Appropriation Ambushed Weber County

Showdown at Geddes Gulch: How Prior Appropriation Ambushed Weber County

By VAL HOLLEY

Exploring Utah in 1889 to evaluate its reclamation potential, a federal irrigation survey team gazed wryly upon the territory’s helter-skelter crop-watering systems. “The lower canals, being in general built first, have the better rights, while the higher canals, last built, have rights only to surplus waters; but from their position up the stream, they have the best facilities for getting what they wish,” noted the survey’s report. The phenomenon was “a striking instance of the survival of the man highest up the stream, irrespective of his rights or of the best use of the water.” 1

That observation pertained to systems on the Provo and Sevier rivers, but it happened also to fit the Ogden River’s scenario to a tee. 2 In 1848 Ogden’s pioneers settled on bottom lands and diverted irrigation water from the river into a dry streambed christened Mill Creek. 3 Over the next dozen years fledgling communities dug ditches tapping either Mill Creek or the river itself in the three miles between its emergence from Ogden Canyon and confluence with the Weber River. Not until 1860 did newer settlements in Ogden Valley, at the opposite and higher end of the canyon, begin tapping the Ogden River’s forks to water their own farms. 4 Although these arriviste irrigators’ claims were junior to those of the lower valley, there was no feasible means of preventing them from taking all the water they wanted. 5

An old view of the Ogden River near Washington Boulevard. The declivity in the background is North Ogden Canyon.

Utah State Historical Society

For the next seven decades Ogden Valley’s unfettered water consumption would be a grave vexation to lower valley farmers, whose emissaries trekked up Ogden Canyon annually to confront their counterparts. In 1883, the West Slaterville Irrigation Company appointed Frederick Foy “to meet with delegates from Lynne and Mound Fort [companies] to devise some plan to prevent certain parties in Ogden Valley from usurping our water.” 6 In the thirsty year of 1888, the Lynne Company’s president, Rasmus Christofferson, personally visited Huntsville “for the purpose of demanding that [they] cease using so much of the water, by right belonging to the people in this [lower] valley,” and recounted similar trips in 1877, 1880, 1883, and 1887. 7 Water masters from Lynne, North Ogden, and Harrisville followed Christofferson to Ogden Valley to plead with Huntsville and Eden to turn water down the river, but could only report, “No definite arrangements were effected to get the water down, as the people there seemed so determined and unwilling to relinquish it, but held onto it so.” Nor could the water masters learn “on what the people in that valley based their rights.” 8

No lower valley town suffered from water deprivation more frequently than Plain City, whose irrigators would instigate three out of four landmark water cases to plod through Weber County’s courts in the decades before storage reservoirs slaked the perennial scarcity. The first of those cases, known as the Geddes case (1892), imposed the doctrine of prior appropriation, or first come first served, on Weber County. The subsequent cases would erode prior appropriation’s force and adjudicate once and for all every last right on the Ogden and Weber rivers. 9

William Geddes. He told the Ogden Standard that the lawsuit under his name was between irrigation companies and reflected no personal animosity.

PIONEERS AND PROMINENT MEN OF UTAH

The circumstances that compelled William Geddes and the Plain City Irrigating District trustees to hale their fellow companies into court were an unlucky coalescence of geography, meteorology, and politics. Plain City had the geographic misfortune to be the caboose among Ogden River water users. Its canal was nine miles long and usually dried up during peak growing season. In contemporary vernacular this was called being at the “honest end” of the stream, since there was no one below it from whom to steal water. 10

If 1888 was not Utah’s driest year since the Mormons’ arrival, the ever-increasing demands on limited water resources made it seem so. The 1888 scarcity “has given rise to … claims to water privileges which have never heretofore been developed,” reported an Ogden correspondent to the Deseret News. “The worst passions of some of the citizens have been aroused; a collision between them was imminent, and the civil authorities have had to interfere to prevent consequences that would have caused much sorrow, grief, and regret.” 11 Community representatives met at the Weber County courthouse in Ogden on August 18 to air grievances. Plain City’s farmers were the most vocal; they “suffered for water” and had “great cause to complain.” But whenever they mentioned their claims on the Ogden River the chairman ruled them out of order and asked them to limit their speeches to proposed solutions. Men from Ogden, Slaterville, and Plain City were appointed to draft a compact for equitable water distribution during droughts, but no final version was ever reported. 12 Ogden Valley had not participated and it must have rankled the lower valley to read in the Ogden Standard that Liberty’s farmers were harvesting “very good crops” and in Eden “everything was flourishing.” 13 The lesson taken away by Plain City’s irrigators was that efforts to arbitrate were all talk and no action.

Much to Utah irrigators’ collective alarm, very little snowfall came that winter and 1889 dawned equally dry, compounding the previous year’s desiccation. The apparent futility of arbitration prompted Plain City water users to obtain an injunction in district court restraining other Ogden River irrigators from “interfering” with their water. Again, representatives convened at the county courthouse, but this year the Huntsville, Eden, and Liberty irrigators, impacted by the injunction, showed up. At the outset, Plain City demanded that its water rights be “reorganized” as equal with the other companies’ or it would withdraw from arbitration. Joseph Taylor of Harrisville scoffed that it would take half the water in the Ogden River to reach Plain City’s remote fields. Trustee William Geddes of Plain City stated that arbitration would prove a waste of time unless each company “prepare[d] legal and lasting articles as to permanent rights.” Once again, the chairman ruled individual claims non-germane. 14

Nonetheless, a motion pledging “our strenuous endeavors” toward an arbitrated settlement carried unanimously. In October a drafting committee published an eleven-point plan. Among its proposals were a registry of all claims on the Ogden River, a triumvirate of referees to settle disputed claims, and one water master to oversee the entire river. The plan was a last-ditch attempt to stop the lawsuit portended by Plain City’s injunction. One of its authors was Edwin Dix, another Plain City trustee. But for reasons not preserved, neither Dix’s input nor the central committee’s good intentions could derail the suit, which even then was unfolding in district court. 15

Had the Ogden River impasse occurred a decade earlier, the county court might have devised a fair and non-controversial solution. Since 1852 Utah’s county courts, created by the territory’s all-Mormon legislature and manned by Mormons, had enjoyed exclusive jurisdiction over water and were statutorily obligated to distribute it on an equitable basis. But 1880 brought a sea change to Utah’s water law, stirring up what historian Robert Dunbar called “a jungle of uncontrolled appropriations and undetermined water rights.” 16 Whereas under the old law water had been public property; the 1880 law treated it as private property. Previously, the broadest public access to water had been presumed and defended by the county courts, but now irrigators would have to procure a certificate as evidence of water rights. Jurisdiction over water claims and certificates was given to new boards of water commissioners.

Principal Ditches on the Ogden River and its forks in 1897.

SAMUEL FORTIER, SEEPAGE WATER OF NORTHERN UTAH

After the new law was approved on February 20, 1880, water commissioners throughout the territory mobilized to administer it. Weber County’s board announced monthly hearings, but water users’ rush to establish claims proved overwhelming and soon required daily sessions, with the Ogden Standard urging claimants to procure their certificates “immediately.” 17 But the new law unleashed a host of unintended consequences. Absent the old duty to decide water claims in the public interest – that is, to maximize the benefit of water to the entire population – commissions generally rubber-stamped any quantity demanded for private use. Economist George Thomas cited a Weber County certificate permitting forty-nine second-feet of water for two hundred acres where three second-feet would have sufficed. 18 Nor could commissions from county to county agree on what the 1880 law meant. One commission held that no one could be prosecuted for taking water not his own until the commission determined the legal rights of all claimants to that water, emboldening some irrigators to break dams and take others’ water with impunity. 19

In January 1881, district court judge Phillip Emerson of Ogden ruled that the 1880 law’s delegation of judicial authority to the water commissions violated the territorial organic act, and that all certificates issued under it were void. (Many reference works on Utah water law acknowledge that the 1880 law became “inoperative” or “unenforced” but fail to document how it happened.) 20 Emerson’s ruling would have steered water disputes into the district courts, created by the U.S. Congress and manned mainly by non-Mormon judges. But in many counties, including Weber, the ruling was ignored and one month later many irrigation districts got water certificates, including Plain City, West Slaterville, and Eden. 21 Water certificate hearings continued at least through 1883. 22 However, if Judge Emerson’s ruling could not stop the boards of water commissioners from usurping judicial prerogatives, the escalating competition for scarce water resources could. Water commissions were simply not equal to the task of resolving complicated and contentious water disputes. “We have a water question to settle,” wrote a Nephi resident in 1881. “The water commissioners have settled it once, but it won’t stay settled, and will have to go to the district court.” 23

So in 1889 Plain City had nowhere to go but the district court, which had its own shortcomings. Samuel Fortier, chairman of civil and hydraulic engineering at Utah Agricultural College, observed that the costs of attorney, court, and witness fees were “worse than being obliged to hoist a ten-ton derrick in order to raise a sack of potatoes,” and recommended spending the money instead on storage reservoirs. The costs in time were substantial as well; farmers lost days and even weeks as they traveled long distances and waited to testify. Water cases in district court typically required three years for a referee to be assigned, testimony taken, and a decree issued. 24

George Thomas favored the late methods of the old county courts, which sometimes initiated their own investigations and conducted their own field work. He felt district courts were too reactive, constrained to hear only cases brought to them and rendering decisions based solely on evidence produced by litigants. He said crucial evidence on soil physics and irrigation engineering was usually poorly presented or entirely absent. Both Thomas and Fortier deplored the self-interested, partisan, and exaggerated testimony often elicited from farmers and surveyors. 25

William Maginnis, referee in the Geddes case, had been chief justice of the territorial Supreme Court of Wyoming until October 1, 1889.

COLLECTION OF MICHAEL O’NEILL

Water cases in Utah’s district courts came to be seen as economic and legal fiascoes. Both the Deseret News and Ogden Standard pleaded with their readers to opt for arbitration over litigation. Said the latter, “It is not only cheaper, but in the end more just. Technicalities are avoided.” 26 Most irrigators did not need to be told this; their minutes reflect an abhorrence of litigation. 27 The 1888 and 1889 summit meetings at Weber County’s courthouse were, in fact, grand attempts to avert a showdown in district court.

Despite all the warnings, William Geddes and his fellow Plain City trustees pushed ahead with their case, called “by far the most important water contest ever brought up in Weber County and probably the most important ever considered in the Territory.” 28 The trial, technically a hearing on making the July 1889 injunction permanent, finally began on March 30, 1891. As fate would have it, the intervening year, 1890, had been one of the wettest years on record in Utah, with water so plentiful that many irrigation companies neither hired water masters nor held meetings. The forecast for 1891 was good, too, so the case’s urgency had dissipated. 29

Plain City relied on two contentions: that an 1859 grant from the county court guaranteed sufficient Ogden River water to fill its ditch, and that its “early settlement … entitle[d] them to the prior right to use all the water necessary.” 30 The town was indeed settled before the Ogden Valley. But North Ogden, Harrisville, and other lower valley defendants proved they had appropriated their water before Plain City was even a gleam in the eyes of its migrating founders from Lehi. 31 Plain City knew perfectly well that its rights were junior to these defendants, as shown by its insistence during the 1889 arbitration that its rights be upgraded as “equal.” But it clearly expected a decree in the old county court mode, ordering pro-rata distribution of water.

Instead, on September 10, 1892, more than three years after the Geddes case was filed, referee William Maginnis came down solidly for prior appropriation, a legal doctrine followed in other western jurisdictions’ case law and recognized by the Utah Supreme Court. 32 Prior appropriation’s essence is first in time, first in right. In its most draconian form, it flinches not at drought; a senior appropriator may, even during scarcity, take all the water specified in his title before a junior appropriator gets even one drop.

Maginnis’s decree established a hierarchy for thirteen irrigation districts, based on their claimed dates of first appropriation, from Mound Fort (June 1, 1850) to Huntsville Mountain (June 1, 1872), and formalized the ditches’ dimensions and volumes of water. Those thirteen districts were entitled to “exclusive use of so much of the water of the Ogden River as will flow in their said ditches according to the dates of their appropriation.” But whenever there was insufficient water to supply each ditch, the junior appropriators, beginning with Huntsville Mountain, would have to close their ditches until Mound Fort and other senior appropriators in succession received all their water. 33 If Plain City, which ranked fifth in a three-way tie, still expected “equal” water rights, the decree must have been a shock.

Geddes shattered the tradition of benevolent solutions. Under the guise of civil procedure, the case had allowed “a great many complications, men claiming more water than they were really entitled to and also spurious dates of filing,” noted a 1918 Weber County Farm Bureau report. “A very peculiar feature of this decree was the adjudicating of claims for nearly double or treble the amount of water in the river in low water season.” 34 It also left important issues untouched. Utah, in its territorial days, was the single western jurisdiction not to require water titles to be filed. 35 Scores of claims on the Ogden River existed when Geddes commenced, but none was legally recorded. 36 The Ogden Bench Canal Company, for example, had wanted to “clear up” its claim during the 1888 drought, but could unearth no record of its establishment. Its secretary noted, “The county clerk … failed to record the minutes of the meeting of the probate court, at which [our] organization was perfected [on June 26, 1855].” 37 Geddes ignored the problems stemming from the lack of legal evidence of water titles.

Moreover, some irrigation districts were not parties to Geddes, including Marriott, West Slaterville, and Northwestern Union. 38 These three companies became the plaintiffs in Weber County’s second landmark water case, Marriott Irrigation Company, et al. v. Bear River Irrigation and Ogden Waterworks Company, et al (1899). 39 The Marriott case would modify the Geddes decree and demonstrate how grueling it was to prove title without legal evidence.

Marriott’s catalyst was another very dry summer, 1895, during which another central committee formed “to equalize the water to all the settlements in order that none may entirely lose their crops.” 40 On September 6, 1895, two days before a central committee convocation, the West Slaterville Irrigation Company met to strategize. As with Plain City in 1889, West Slaterville considered refusing to submit to arbitration. Edwin W. Smout argued, accurately, that they had prior rights over “most” Ogden River companies, including Plain City, Harrisville, Farr West, North Ogden, Huntsville, and Eden, and he favored going to court to “stick to it.” John A. Allred, Slaterville’s Mormon bishop, agreed with Smout because establishing those rights was easier “while we had the testimony at hand which we would not have always.” Smout proposed conferring with Slaterville’s oldest living original settler, Stephen Washington Perry, “and get all the information they could.” 41 Perry had helped to construct the Northwestern Union Canal, Slaterville’s earliest diversion from Mill Creek. 42 Whether through interviewing Stephen Washington Perry, researching county records, or consulting attorneys, West Slaterville discovered that both its rights and Marriott’s rights were derived from Northwestern Union’s.

Judge Jacob Johnson, who modified the Geddes decree, later served as a Congressman from Utah, 1913-1914.

COLLECTION OF ARDATH E. JOHNSON

The complaint, filed in August 1897, asked for an injunction preventing the defendants, all irrigators west of Ogden Canyon, from diverting plaintiffs’ water from the Ogden River and Mill Creek. 43 (A later motion to add Ogden Valley water users was denied.) After more than a year of cross-complaints and answers, the trial began on January 23, 1899, with Jacob Johnson of Spring City, “one of the best posted men in the state on irrigation and water rights,” as visitingdistrict court judge. 44 Stephen Washington Perry and his brothers Alonzo and Sylvester led off as plaintiffs’ first witnesses, presumably because their institutional memory would lay the foundation for establishing titles. They testified to “the manner and means by which [Northwestern Union’s] interest became the interest of the Marriott Company.” 45

Thomas Slater, West Slaterville’s oldest-continuous shareholder and first witness, testified for an entire day, followed by numerous company stalwarts and the county recorder who read various deeds and descriptions. The defendants marshaled over one hundred witnesses, Judge Johnson fretted over concluding the case before his term expired, and a doodling defense attorney, fearing the case might never end, sketched caricatures of the judge and court reporter as wizened old men. The exhaustive reconstruction of title provenance can be inferred from a list of persons with “interests” in West Slaterville’s ditch printed in the Ogden Standard. Many on the list were either deceased or had not lived in Slaterville for four decades, including Morrisites who had left in 1861. 46 Although no transcript survives, a critical consideration in establishing plaintiffs’ titles would have been Northwestern Union’s relation to the Bertonati Irrigation Company, whose head gate lay one mile east on Mill Creek. The Bertonati ditch was the original Northwestern Union ditch and had so functioned until 1878, when a majority of shareholders constructed a new (and present) diversion point with the right to five of the original eight second-feet of water. 47 Judge Johnson filed his decision on April 24, 1899, consisting of an opinion and thirty findings, only two of which were reprinted in newspapers. From press accounts, one might conclude that Marriott, West Slaterville, and Northwestern Union lost their case. Johnson ruled that the defendants had not “in any manner interfered with any rights of plaintiffs,” nor “threatened” to interfere. 48

A rural road near Ogden.

UTAH STATE HISTORICAL SOCIETY

But the Marriott case was actually a stunning victory for the plaintiffs. Although they never claimed to be the first to divert Ogden River water, Marriott, West Slaterville, and Northwestern Union were guaranteed that the low water allotted to them would henceforth “be distributed to them prior to all other rights on the Ogden River.” 49 Annual reports of Ogden River commissioners confirm that the “Johnson decree” overrode all other adjudications of the river. A 1942 Bureau of Reclamation report said the 1892 Geddes case had “defined the major right[s] on the river system … However, some of its provisions were superseded in subsequent decrees, particularly one made by Judge Jacob Johnson in the [1899 Marriott case].” 50 Johnson’s rationale for leapfrogging the plaintiffs’ rights over the senior rights of the Mound Fort and Lynne companies was not preserved. The resulting doctrine would seem to be: first in time, first in right except when it is not.

Slaterville historian Jerome Wheeler later explained, “First claims … had previously been secured by Lynne and Mound Fort companies … However, these companies refusing in later years to cooperate in defending their early rights in court forfeited first claims to [West] Slaterville Irrigation Company as stipulated in a decree of the court.” 51 Lynne Irrigation Company minutes seem to validate Wheeler’s statement. They record a conversation between their president and Marriott’s president, who “thought we [Lynne] should have been plaintiffs instead of defendants … [Marriott’s president] did not think they cared to fight us although they had made us a party to the action.” Lynne’s directors agreed “to procure witnesses if possible to establish a better claim to our upper ditch and if this could not be done to negotiate with plaintiffs for the privilege of joining them as plaintiffs.” Obviously that was not done. 52 Blain Johnson, current Ogden River commissioner, confirms that the three companies’ priority of low-water Ogden River rights remains intact to the present day. But the commissioner doubts the 1899 decree matters nowadays because “there is always enough water for rights with high seniority, anyway.” No report of hardship resulting from the three companies’ “super” rights was found. During 1930, a year of water scarcity, the three companies voluntarily shared their water with the Mound Fort and Bertonati companies. 53

Weber County’s third landmark water case, Fuller v. Sharp (1908), ascended to the Utah Supreme Court where it introduced the concept of “return flow” into state case law, a significant retreat from prior appropriation’s severity. “One of the matters which most complicate and embarrass … the strict enforcement of priorities of appropriation,” U.S. Geological Survey hydrographer Frederick Haynes Newell had written, is return flow, which “comes from the seepage from lands higher upstream to which water has been applied earlier in the year.” 54

Fuller’s slapstick narrative, centered around the Eden Irr igation Company’s dam on the North Fork of the Ogden River, might present an opportunity for an enterprising Utah farceur. In July 1904, Milo Sharp and other trustees of the Plain City and Harrisville irrigation companies broke Eden’s dam, believing Eden had diverted water belonging to them. George Fuller and his fellow Eden trustees repaired their dam and got a court injunction restraining their predators from further demolitions. The situation was turned on its head the following summer as North Ogden obtained an injunction from a different judge ordering Eden to break its formerly protected dam so water might flow down to North Ogden. Eden complied but two days later rebuilt its dam, only to be held in contempt of court. 55

Construction of the Pineview Dam.

UTAH STATE HISTORICAL SOCIETY

To justify its taking of North Fork water contrary to the 1892 Geddes decree, Eden presented considerable scientific data at trial, showing that water diverted onto its fields seeped and percolated through layers of loam, sand, and gravel and then returned to the Ogden River through gullies and springs. 56 Back in the Geddes trial, the Ogden Valley companies had alleged this return flow, unsupported by expert testimony, but referee Maginnis had not considered it legally applicable. 57 Only in 1894 did Professor Samuel Fortier, alerted by a Colorado colleague that irrigation at high elevations appeared to increase a lower river’s summer volume, take measurements in Ogden Valley streams that would so change the concept of prior appropriation. 58

Plain City, through its own expert, insisted that North Fork water if left alone would course down its natural channel into the Ogden River and that no water diverted onto Eden’s farms ever found its way back into the river. 59 The trial court ordered the Eden Canal closed for two weeks so measurements of uninterrupted North Fork flow could be taken. As Eden had claimed, the water sank into the gravelly streambed, leaving a dry channel over a mile in length and producing no perceptible increase in Ogden River water. 60 The court ruled for Eden and Plain City appealed.

Lower valley canals and ditches at the time of Pineview Dam’s completion, 1937.

OGDEN RIVER WATER COMMISSIONERS REPORT, 1937

The Utah Supreme Court affirmed for Eden. The majority opinion and dissent classically illustrated the tension between an equitable approach to water distribution and the austere legality of prior appropriation. Since seepage demonstrably caused more water to flow down to Plain City than if North Fork water took its natural course, the majority said the route for Plain City’s entitlement was immaterial. Prior appropriation, it said, was a right to a quantity, not to a means of conveyance. If North Fork water could not reach Plain City even without Eden’s diverting it, then Plain City could not deprive Eden of a beneficial use where Plain City would get no benefit regardless. 61 The dissenting justice, on the other hand, saw no reason for equitable considerations to intrude on the Geddes decree of 1892. He stated vehemently that everything concerning the parties’ rights, times of appropriations, quantities, and circumstances of usage were already adjudicated and the trial court acted inappropriately to treat those matters as undetermined. He considered the trial court’s finding that Plain City still had a prior right in North Fork water yet did not own or control that water, to be unclear and contradictory. 62

Fuller did suppress longstanding scuffles over North Fork water, but this merely shifted the lower valley’s glare to other Ogden Valley irrigators, particularly those on the South Fork. Amplifying these chronic frustrations was Ogden City’s drilling of artesian wells, beginning in 1914, at the east end of Ogden Canyon for a new water supply. The wells earned immediate renown for their pristine and delicious water, but they depleted the return flow that had supposedly justified weakening the lower valley’s prior rights. 63 On January 18, 1921, Plain City again filed a major water lawsuit (its third and Weber County’s fourth), this time to compel the adjudication of rights on the entire Weber River system, of which the Ogden River is a tributary. The adjudication would take twenty-seven years to complete.

A new state water law passed in 1919 created the adjudication process, a judicially-supervised tabulating of claims and conducting of field surveys by the state engineer. The law required courts to notify the state engineer of any suit for determination of water rights; the engineer then had to identify and notify all claimants and submit a proposed determination to govern water distribution until the court approved a final determination. However, the engineer’s proposed determination could not supersede rights already established in earlier decrees. 64

The state engineer filed his proposed determination on September 3, 1924, inciting claimants to file nearly five hundred objections with the court. 65 Of all these objections, none was more contentious than Plain City’s unflagging belief that the Ogden Valley took its water, and the state engineer tried doggedly but unsuccessfully to mediate. Prominent Ogden Valley irrigator Donald Drover McKay described his neighbors’ wariness of the state’s intervention. “It was clear to those who knew the opinions of the [successive] state engineers,” McKay wrote, “that when the decision was finally made, it would be on the basis of first in time, first in right [i.e., prior appropriation] without any qualification or modifying factors.” The Eden and Huntsville irrigation companies both sought writs of prohibition at the Utah Supreme Court to prevent the district court from making its final determination, but the writs were denied. 66 Opting for carrots instead of sticks, companies on the South Fork organized to lobby both the engineer and the lower valley to accept the data on return flow, but McKay said these efforts were “finally abandoned as useless.” 67 On September 18, 1926, the engineer ordered the Weber River commissioner to shut off all water taken by South Fork companies. The companies were prepared for the move and got a restraining order the same day, forcing the commissioner to reopen the ditches only a few hours after closing them. 68

Years of field work by the state engineer’s office finally persuaded the Ogden Valley, lower valley, and Ogden City to sign a three-way stipulation on July 23, 1929, to govern water distribution for a trial period of seven years. Ogden City would have unlimited use of its artesian wells in exchange for a portion of its water share in an anticipated future reservoir (present-day Pineview). The lower valley’s prior rights were quantified at one hundred twenty-five second-feet, and whenever the flow at the mouth of Ogden Canyon fell below that level, Ogden Valley must release enough water to create a flow equal to 133 percent of the flow at the U.S. Geological Survey’s gauging station on the South Fork. 69

With this stipulation in place, the Ogden River commissioner could focus on improvements in distribution. In 1930 he persuaded all lower valley companies and many in Ogden Valley to install locking head gates and measuring devices, allowing irrigators to see precisely how many secondfeet they were getting. “It has been possible,” he reported, “to set the canal[s] with just the amount to which [they are] entitled and then hold it there days and days without any change whatever.” Plain City installed inverted siphons to route its water under the Ogden River and over Mill Creek, eliminating an old problem of commingling different companies’ water. 70

Another welcome development in 1930 came as the new Echo Canyon Reservoir on the Weber River in Morgan County began storing water. Plain City purchased storage rights, and the water so acquired, routed through their canal’s extension to the Weber River, gave them an adequate supply. Otherwise, noted water commissioner E. S. Borgquist, “due to [Plain City’s] priority date it would have been dry all summer if furnished from the Ogden River.” 71

The adjudication of the Weber River system, instigated in 1921, was finalized on June 2, 1937, but the portion comprising the Ogden River had to be postponed. Construction of Pineview Dam and Reservoir on the Ogden River was completed that summer and water users would require eleven more years to adjust to the new circumstances. Storage in Pineview had begun in November 1936 and irrigators began purchasing water the following summer. 72

Echo Dam and Reservoir, completed in 1930.

UTAH STATE HISTORICAL SOCIETY

Pineview Reservoir would palliate water shortages and pacify irrigators’ perennial quarrels, but the need to maintain a priority-based distribution system did not change. Under various scenarios, water shortages can still occur. By contract with the Bureau of Reclamation, Ogden City has the right to drain Pineview for inspections and repairs of its artesian wells, now underneath hundreds of feet of water. 73 The reservoir is also drained intermittently for dam repairs and seismic upgrades, sometimes during periods of drought in spite of irrigators’ heightened needs. 74 During dry years, of course, Pineview can drop to inadequate levels. In 1959, for example, it held only one-third of its normal amount, embroiling Ogden City and Plain City in litigation over distribution. 75

While clearly a boon to irrigators, Pineview never significantly altered the distribution scheme established in the 1929 stipulation. When the final determination (the “Ogden River Decree”) finally came on April 1, 1948, the stipulation’s essential elements – the prime measurements on the South Fork and at the mouth of Ogden Canyon, and the Ogden Valley’s obligation to turn down water if the latter measurement underperformed – still stood. 76 With the era of behemoth water lawsuits in Weber County now behind us, it is fitting to assess prior appropriation’s impact on the county’s irrigating history. When first formally imposed via the 1892 Geddes decree, prior appropriation took the county, and especially Plain City, by surprise. While they understood intellectually that seniority mattered, they expected the district court to oversee an equitable distribution of at least some water to all irrigators. Instead they got a rigid hierarchy of rights that could easily have left junior irrigators with no water during periods of scarcity. Nonetheless, irrigators adapted to prior appropriation’s vagaries. Twelve years later Plain City would embrace the Geddes decree in justifying its breaking of Eden’s dam in the Fuller v. Sharp case, and went so far to hire as its attorney William Maginnis, the Geddes referee.

Aside from its obvious incompatibility with Utah’s equitable traditions, prior appropriation encouraged the view among irrigators that the courts and the law were ineffectual. For all the Geddes decree’s bluster, farmers never felt prior appropriation protected their interests. Senior rights failed to control the outcome in subsequent cases. Companies constantly accused each other of stealing water and hired men to watch their ditches twentyfour hours a day. Worst of all, as McKay pointed out, lawsuits under the doctrine of prior appropriation “settled nothing and provided not one single drop of additional water.” 77

In subsequent landmark water cases Weber County gradually distanced itself from prior appropriation’s harshness. Judge Johnson’s 1899 decree in the Marriott case rearranged the rights on the Ogden River so prior appropriation meant, literally, twelfth in time, first in right. 78 Fuller v. Sharp, decided at the Utah Supreme Court in 1908, qualified prior appropriation with return flow, so that as long as a senior irrigator got his water, his means of delivery was immaterial. The Ogden River adjudication, completed in 1948, benefited from the 1919 state water law’s transfer of fact-finding duties to the state engineer and its favoring of empirical solutions over legal rigors in ranking an entire region’s rights.

Prior appropriation was simply a legal tool improvised in the course of the arid West’s growing pains to allow courts to process water disputes. Although it nominally remains the law in western jurisdictions, Professor Gordon Bakken asserts that prior appropriation became obsolete when confronted by the extreme circumstances of dry weather cycles and burgeoning populations. Utah’s legislature eventually imported successful strategies from other western states, emphasizing economic distribution by the state over legal rights. Such policy judgments, wrote Bakken, “promoted the efficient use of water based on scientific considerations rather than the oftentimes wasteful use of water based on strictly legal grounds.” 79

NOTES

Val Holley, a law librarian in Washington, D.C., is a Weber County native.

1 John Wesley Powell, Eleventh Annual Report of the United States Geological Survey to the Secretary of the Interior, 1889-90, 2 parts, (Washington, D.C., 1891), II, 72, 75, cited in Thomas G. Alexander, “John Wesley Powell, the Irrigation Survey, and the Inauguration of the Second Phase of Irrigation Development in Utah,” Utah Historical Quarterly 37 (1969) 196-97.

2 Likewise, Donald Drover McKay, summarizing Utah’s nineteenth-century succession of water statutes, observed they “could well have been written for Weber County alone, for they reflected an exact picture of developments in this county during those years.” See Donald Drover McKay, “Report: Irrigation in Weber County” (1947), 11, manuscript, Utah State Historical Society.

3 James Lyman Robson, “Weber County Report on Irrigation Claims on Ogden River” (1918), 5, manuscript, Utah State Historical Society.

4 E.S. Borgquist, “Ogden River Water Commissioner’s Report for 1930,” 3, George D. Clyde Papers, Merrill Library, Utah State University.

5 Technically Ogden and the farming communities west of Ogden Canyon are part of the Salt Lake Valley, but were commonly called the “lower valley” in irrigation documents.

6 West Slaterville Irrigation Company, minute book, March 6, 1883, William Wheeler Papers, Marriott Library, University of Utah.

7 Lynne Irrigation Company, minute book, July 5, 1888, in possession of Anna Stone Keogh, Ogden.

8 Lynne minute book, undated but after July 9, 1888.

9 Two comprehensive critiques of prior appropriation are Moses Lasky, “From Prior Appropriation to Economic Distribution of Water by the State – Via Irrigation Administration,” Rocky Mountain Law Review 1 (April 1929): 161-216; Rocky Mountain Law Review 1 (June 1929): 248-270; Rocky Mountain Law Review 2 (November 1929): 35-58; and Samuel C. Wiel, “Theories of Water Law,” Harvard Law Review 27 (1914): 530-44.

A good foundation for the study of Utah water law is Robert W. Swenson, “A Primer of Utah Water Law: Part I,” Journal of Energy Law and Policy 5 (1984): 165-96, and “Part II,” Journal of Energy Law and Policy 6 (1985): 1-54. Annals of individual Utah irrigation companies are presented in Thomas G. Alexander, “Irrigating the Mormon Heartland: The Operation of the Irrigation Companies in Wasatch Oasis Communities, 1847-1880,” Agricultural History 76 (2002): 172-87; and Thomas G. Alexander, “Interdependence and Change: Mutual Irrigation Companies in Utah’s Wasatch Oasis in an Age of Modernization, 1870-1930,” Utah Historical Quarterly 71 (Fall 2003): 292-314.

10 Barre Toelken, “The Folklore of Water in the Mormon West,” Northwest Folklore 7 (Spring 1989): 14.

11 Deseret Weekly News, July 18, 1888.

12 Ogden Standard, August 19, 1888. The drafters were Ogden’s William Lowe, Slaterville’s John Knight, and Plain City’s Andreas Peter Poulsen.

13 Ogden Standard, September 21, 1888.

14 Ogden Standard, July 31, 1889.

15 Ogden Standard, July 31, October 5, 1889.

16 Robert Dunbar, Forging New Rights in Western Waters (Lincoln: University of Nebraska Press 1983),

17 Ogden Standard, June 30, September 29, 1880.

18 George Thomas, The Development of Institutions Under Irrigation, with Special Reference to Early Utah Conditions (New York: Macmillan, 1920), 139.

19 Deseret Weekly News, July 28, 1880.

20 Salt Lake Tribune, January 26; March 18, 1881; Territorial Enquirer [Provo], January 29, February 16, 1881. Emerson made a similar ruling three years later; see Ogden Herald, May 15, 1884.

The Deseret Weekly News of July 2, 1884, without being specific, said the only adverse decision from any Utah court on the 1880 law had been from the First District (which included Ogden). The voiding of the 1880 law by Judge Emerson is identified here for the first time. Seven years earlier, Emerson, as a Utah Supreme Court justice, had upbraided the territorial legislature for creating judicial authority inconsistent with the organic act; see Golding v. Jennings, 1 Utah 135 (1874).

21 Charles Hillman Brough, Irrigation in Utah (Baltimore: Johns Hopkins Press, 1898), 204.

22 Ogden Standard, April 18, 1883.

23 Deseret Weekly News, March 2, 1881.

24 Samuel Fortier, “Irrigated Utah and Her Needs,” in Irrigation in Utah (Salt Lake City: Utah Irrigation Commission, 1895), 41. Fortier had been chief engineer of Ogden City’s waterworks during the Geddes case and his writings were apparently informed by it.

25 Thomas, Development of Institutions, 190-91; Fortier, “Irrigated Utah,” 41-42.

26 Deseret Weekly News, December 1, 1880; Ogden Standard, July 17, 1888.

27 For example, the Lynne Irrigation Company’s minutes of June 29, 1888: “All possible should meet together and talk the matters over … and not allow the matter to go into litigation.”

28 Salt Lake Tribune, September 11, 1892.

29 Ogden Standard, April 1, 1891.

30 Ibid. The Geddes pleadings have not been located.

31 Ogden Standard, April 3, and 8, 1891.

32 The Colorado Supreme Court “developed” the doctrine of prior appropriation beginning in 1872. See Gordon Bakken, The Development of Law on the Rocky Mountain Frontier: Civil Law and Society, 1850- 1912 (Westport: Greenwood Press, 1983), 33. The Utah Supreme Court’s earliest recognition of prior appropriation was in Crane v. Winsor, 2 Utah 248 (1878).

33 See http://www.waterrights.utah.gov/cgi-bin/docview.exe?Folder=DECREE112230 (accessed April 2, 2008).

34 Robson, “Weber County Report,” 3.

35 Bakken, The Development of Law, 72.

36 Robson, “Weber County Report,” 3. Much of the Ogden River water was appropriated before the county courts existed.

37 Ogden Bench Canal Company, minute book, September 15, November 6, 1888; January 10, 1889, Special Collections, Stewart Library, Weber State University.

38 The West Slaterville Irrigation Company was the predecessor of present-day North Slaterville Irrigation Company. Northwestern Union Irrigation Company was the predecessor of present-day Perry Ditch Irrigation Company (not to be confused with Perry in Box Elder County).

39 The Bear River Irrigation Company owned the Ogden Waterworks from 1890-1910.

40 Ogden Standard, July 10, August 7, 1895.

41 West Slaterville minute book, September 6, 1895.

42 Ogden Standard, January 23, 1899.

43 Complaint in Ogden Standard, August 27, 1897.

44 Ogden Standard, March 29, 1899.

45 Ogden Standard, January 23, February 6, 1899.

46 Ogden Standard, March 30, 1899. The list included Thomas “Bergo” [Virgo], landlord to the schismatic prophet Joseph Morris, plus Morrisites William Field Bull and Moses Byrne.

47 Bertonati Irrigation Company, minute book, February 7, 1926, in possession of Anna Stone Keogh, Ogden. The old ditch was renamed for shareholder Michael Bertonati who must have purchased his rights from an original owner. It was filled in after its lands were appropriated for the Defense Depot Ogden.

48 Ogden Standard and Salt Lake Tribune, April 28, 1899.

49 District Court of the Second Judicial District of the State of Utah, in and for Weber County, Plain City Irrigation Company v. Hooper Irrigation Co., et al., No. 7487, Findings of Fact, Conclusions of Law, and Judgment and Decree (1948) (hereinafter “Ogden River Decree”), 21, Utah State Historical Society.

50 Gilbert Wheelwright, “Ogden River Water Commissioner’s Report for 1937,” 3, 8; Bureau of Reclamation, “Appendix Report on Ogden River Investigations” (1942), 36; both documents in Orson Winso Israelsen Papers, Merrill Library, Utah State University.

51 Jerome Wheeler, History of Slaterville (private printing, 1978), 55. Wheeler was sixteen and an experienced irrigator when the Johnson decree was issued.

52 Lynne minutes, September 23, 1897.

53 Blain Johnson conversation with author, December 21, 2007; Borgquist, “Commissioner’s 1930 Report,” 1.

54 Frederick Haynes Newell, “Letter of Transmittal,” April 13, 1897, in Samuel Fortier, “Seepage Water of Northern Utah,” Water-Supply and Irrigation Papers of the United States Geological Survey, No. 7, House of Representatives Document No. 349, 54th Congress, 2nd Session (1897).

55 Ogden Standard, August 27, 1904; August 8, 1905. Harrisville’s company was known as the Western Irrigation Company.

56 Fuller v. Sharp, 94 P. 813, 815-16 (1908). This case is Weber County’s principal contribution to Utah water law. The 1892 Geddes decree was never appealed and is not known to have influenced water cases in other counties.

57 Ogden Standard, September 11, 1892.

58 McKay, “Irrigation in Weber County,” 13-14. Fortier’s 1894 measurements were published in “Seepage Water of Northern Utah” and noted in the Fuller opinion.

59 Ogden Standard, December 2, 1904.

60 Fuller v. Sharp, 815-16.

61 Fuller v. Sharp, 817-18.

62 Fuller v. Sharp, 821-22.

63 Leonard J. Arrington and Lowell Dittmer, “Reclamation in Three Layers: The Ogden River Project, 1934-1965,” Pacific Historical Review 35 (1966): 18-19.

64 Bureau of Reclamation, “Appendix Report,” 36-37.

65 Ogden Standard Examiner, April 1, 1925.

66 See Eden Irrigation Company v. District Court of Weber County, 211 P. 957 (1922); Huntsville Irrigation Association v. District Court of Weber County, 270 P. 1090 (1928).

67 McKay, “Irrigation in Weber County,” 18.

68 Ibid., 20; see Ogden Standard-Examiner, September 21, 1926.

69 Bureau of Reclamation, “Appendix Report,” 37. Upon completion of a reservoir on the Ogden River, the lower valley’s priority would rise to one hundred thirty-five second-feet.

70 Borgquist, “Ogden River Water Commissioner’s 1930 Report,” 4.

71 Ibid., 3, 5.”

72 Wheelwright, “Ogden River Water Commissioner’s 1937 Report,” 2-3.

73 Arrington and Dittmer, “Reclamation in Three Layers,” 23-24.

74 Standard-Examiner, July 2, 2002; Salt Lake Tribune, October 3, 2004.

75 See Plain City Irrigation Company v. Hooper Irrigation Company, 356 P. 2d 625 (1960).

76 Ogden River Decree, 11.

77 McKay, “Irrigation in Weber County,” 21.

78 Ogden River Decree, 21. As tabulated in 1948, Northwestern Union’s (now Perry Ditch) right ranked twelfth in time; West Slaterville’s (now North Slaterville) ranked fourteenth; and Marriott’s ranked twenty-first.

79 Bakken, The Development of Law, 32, 39, 70.