»{»I j i i { t > { i « { t » { « « j « « { ««{»■{«» { « »j« »{«»{««}«>{ « { «« { ■ i { » ■ { ■ ■ } ■■ } »■ { ■ i { i i j i i j i i i < IRRIGATION AND WATER RIGHTS THE NEW LAW .-> f As amended by the Eighth Session of the Legislature of the State of Utah IRRIGATION AND WATER RIGHTS THE NEW LAW As amended by the Eighth Session oF the Legislature oF the State oF Utah 1909 STAR PRINTING COMPANY SALT LAKE CITY 1909 Digitized by the Internet Archive in 2018 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/irrigationwaterrOOutah 333>7 TITLE 40. Irrigation and Water Rights. X CHAPTER I. ^ State Engiiieer. Water Rights on Streams, Etc. If Section 1261. Office of State Engineer created. Powers and duties. There shall be a State Engineer, who shall be appointed by the Governor of the State to be confirmed by the Senate. He shall hold his office for the term of four years and until his successor shall have been appointed and qualified. He shall have general supervision of the waters of the State and f their measurement, apportionment and appropriation, and all division superintendents and district supervisors. He shall have power to make and publish such rules and regula¬ tions as he may deem necessary from time to time to fully carry out the provisions of this title and secure the equitable and fair apportionment of the water according to the respec¬ tive rights of appropriators. No person shall be appointed to the office of State Engineer who has not such theoretical knowledge and practical experience and skill as shall fit him for the position. R. S. ’98, Sec. 2451; ’01, p. 141; ’03, p. 88; ’05, p. 145. 1262. Salary and allowances. The State Engineer shall receive a salary of three thousand dollars per annum, pay¬ able in quarterly installments by the State Treasurer upon warrants drawn by the State Auditor. When the State Engin- neer is called away from his office on official business, he shall be entitled to his actual traveling expenses, which shall be paid out of any money appropriated for that purpose, on the cer. tificate of said State Engineer, approved by the State Board of Examiners. R. S. ’98, Sec. 2451; ’01 pp. 142, 143; ’03, p. 88; ’05, p. 145. 4 1263. Office at Capital. The State Engineer shall keep his office at the State capital. R. S. ’08, Sec. 2451; ’01, p. 142; ’03, p. 89; ’05, p. 146. 1264. Oath and bottd. Before eatering upon the duties of his office, the State Engineer shall take and subscribe an oath before some officer authorized by the laws of the State to administer oaths, to faithfully perform the duties of nis of¬ fice. He shall file with the Secretary of State said oath and his official bond in the penal sum of five thousand dollars, with not less than two sureties, to be approved by the State Board of Examiners, and conditioned for the faithful dis¬ charge of the duties of his office, and for the delivery to his successor or other officer appointed by the Governor to re¬ ceive the same, of all moneys, books and other property be¬ longing to the State then in his hands or under his control, or with which he may be legally chargeable as such officer. R. S. ’98, Sec. 2451; ’01, p. 142; ’03. p 89; ’05, p. 146. 1265. Report to Governor. The State Engineer shall prepare and render to the Governor biennially, and oftener if required, full and true reports of his work relating to the matters and duties devolving upon him by virtue of his office, which biennial report shall be delivered to the Governor on or before the 31st day of December of the year preceding the regular session of the Legislature. He shall become conver¬ sant with the waterways of the State, and its needs as to ir¬ rigation matters, and in his reports to the Governor he shall make such suggestions as to the amendment of existing laws or the enactment of new laws as his information and exper¬ ience shall suggest. He shall keep on file in his office full and proper records of his work, including all field notes, computa¬ tions, and facts made or collected by him, all of which shall be dulj^ certified by him, and be part of the records of his office and the property of the St ate. ^ All records, maps, and other papers recorded and filed in the office of the State Engin¬ eer shall be open to the public during business hours, and copies thereof, certified by said engineer, shall be furnished on payment of the fees provided for by Section 970x. R. S. ’98, Sec. 2458; ’01, p. 143; ’03, p. 89; ’05, p. 146. 1266. Duties of engineer. May be co-operative with National Government. The State Engineer shall make a complete hydrographic survey of each river system and water source of the State, beginning such work upon those streams 5 and sources which are most used for irrigation, and from the data so obtained the State Engineer shall construct maps, which shall exhibit the essential facts relating to the supply, diversion, and use of the water of each>of such river system or water sources. He shall also collect such other facts as will, in his Judgment, aid in ascertaining the existing rights to the use of the water and in determining the volume of the surplus or unappropriated water, if any, of each of such streams or sources. He shall have general supervision of the appropriation of all surplus or unappropriated water in the manner provided by law. Said surveys and collections of facts shall include the location of all suitable sites for dams and reservoirs, and a determination of the approximate ca¬ pacity and^cost of each. In doing such w ork, the State En¬ gineer may co-operate wdth the agencies of the National Gov¬ ernment engaged in similar work within the State, for the purpose of interchanging information and avoiding the un¬ necessary duplication of w’ork. The State Engineer shall have a seal which he shall affix to all certificates issued from his office. R. S. ’98, Sec. 2452; ’01. p. 142; ’03, p. 89; ’05, p. 146. 1 267. Id. Notice to be given. Before commencing the hydrographic survej^ of any river system or water source, the State Engineer shall cause notice to be published in some newspaper having general circulation on said river system or water source, stating the time and place of beginning said survey, and said notice shall be published continously in said newspaper for a period of not less than fifteen days immedi¬ ately prior to the commencement of said w^oik ’03, p. 90; ’05, p. 147. 1268. Must examiue plans of dams exceeding five feet in height, and inspect dams. Duplicate plans, drawings, and specifications for any dam above five feet in height, across the natural channel of a running stream, or of any other dam in¬ tended to retain w’ater above ten feet in height, shall be sub¬ mitted to the State Engineer for his approval, who shall ex¬ amine such plans, drawings, and specifications, and, if he ap¬ proves the same, he shall return one copy of each such plans, drawings, and specifications, with his approval, to the party or parties submitting the same, and file the other in his office. If the State Engineer disapproves any of such plans, draw^- ings, or specifications, he shall return the same, with his rea¬ sons for such disapproval. The State Engineer shall have au¬ thority to keep an inspector on any such dam during the con- (5 structiou thereof, and to see that the work is done in accord¬ ance wdth the plans, drawings, and specifications, and the State Engineer may require the parties constructing the same to make any additions or alterations during the construction which he considers necessary for the security of the work, the safety of persons, or the protection of property. Any person, corporation, or association beginning the construction of any such dam before the plans, drawings, and specifications shall have been submitted to and approved by the State Engineer, or proceeding with such work in the absence of an inspector appointed by said engineer, or who shall fail to comply with any of the requirements made by him in pursuance of this section, shall be guilty of a misdemeanor. R. S. ’98, Sec. 2453; ’01, p. 146; ’03, p. 90; ’05, p. 147. 1269. Id. Dam or works examined, when. Should any person, corporation, or association residing on or owning land in the neighborhood of any completed dam or diverting works, apply to the State Engineer in writing, requesting an examination of such dam or works, the State Engineer may order an examination thereof. Before doing so, he may re¬ quire the applicant for such examination to deposit a sum of money sufficient to pay the expenses of the examination, and in case the application appears to him not to have been justi¬ fied, he may cause the whole or part of such expense to be paid out of such deposit. In case the request appears to the State Engineer to have been justified, he may require the owner of the works to pay the whole or any part of the expenses of such examination. R. S. ’98, Sec. 2456; ’01, p. 146; ’03, p. 90; ’05, p. 148. 1270. Id May inspect ditches, etc., and require altera¬ tion. The State Engineer shall have authority to examine and inspect, during construction, any ditch or other diverting works,and, at the time of such inspection, he may order the par¬ ties constructing the same to make any addition or alteration which he considers necessary for the security of such works, * the safety of persons, or the protection of property. Any per¬ son refusing or neglecting to comply with such requirements of the State Engineer shall be guiltyof a misdemeanor. But the provisions of sections 1268-1270 shall not apply to works con¬ structed by the National Government. ’03, p. 91; ’05, p. 148. 1271. State Eugineer to briug actiou to determine water rights; jurisdictiou of District Court. When the State Engineer has completed the hydrographic survey of any 7 river system or water source, be shall file a wfitten state¬ ment with the clerk of the district court of the county in which the same is situated, or if the system or source extends into more than one county, the statement should be filed in any county which embraces any part of such river system or water source that the State Engineer shall select as most convenient for the water users of the system or source. Said statement shall set forth the fact of the completion of such survey, the names and post-office addresses of all persons, corporations, and associations using water of said river system or water source, so far as the same are known to the State Engineer, and shall contain such other facts and infor¬ mation as he may deem necessary. On the filing of such statement, the district court in the county where the same is filed shall have exclusive jurisdiction to determine all water rights on said river system or water source, in accordance with the provisions of this Title. ’01, p. 143: ’03, p. 91; ’05, p. 148. 1272. Id. Notice to be given to Claimants to file state¬ ments. Within thirty days after the filing of the statement mentioned in the next preceding section, the clerk of the court in which the same shall be filed must give public notice that all persons claiming the right to the use of any water of said river system or water source must file a written statement with the clerk of said court, within six months after the first publication of said notice, setting forth their respective claims to the use of such water, which notice shall be published at least once a week for three successive months in some news¬ paper printed and published within the boundaries of said river system or water source and having a general circulation therein; or, if there be no such newspaper, then it shall be pub¬ lished in some newspaper printed and published in this State and having a general circulation on said river system or water source. The clerk of said court shall also mail, by registered letter,to each of the persons, corporations, or associations whose names and addresses are given in such statement filed by the State Engineer, a copy of said notice, and a blank form on which said 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. ’03, p. 91; ’05, p. 148. 1273 Id. Claimants to file statements of water rights with the Court. Each person, corporation or association claim- 8 ' iD'g the right to use any water of said river system or water source shall, within six months after the first publication of the notice provided for in the next preceding section, file in the office of the clerk of the court giving said notice 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 follow¬ ing: The name and postoffice address of the person, corpora¬ tion, or association making the claim; the nature of the use on which the claim of appropriation is based; the flow per second of water used 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 place 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 dimensions, grade, shape, and nature of the diverting chan¬ nel, as originally constructed; the date when the original diverting channel was completed; the date when the water was first used, the flow per second and the time during which the water was used the first year; the date and nature of each subsequent change made in the original diverting channel; the flow per second of the water used and the time it was used each year between each of the changes so made, and the dimensions, grade, shape, and nature of the present divert¬ ing channel; the place where and the manner in which the water was first used; the nature of each subsequent change in the place or manner of use, and the place and manner of present Use; and such other facts as will clearly define the ex¬ tent and nature of the appropriation claimed. If the water claimed to have been appropriated is used for irrigation, the statement shall show, in addition to the above required facts, the area of land irrigated the first year and each sub¬ sequent year; the total area at present irrigated, and its loca¬ tion in the section, township, and range wherein it is situated; the character of the soil and the kind of crops raised during the first year of use and the first year after each subsequent change of channel, and during the last year in which the water was applied. If the water claimed to have been appropriated is used for developing power, the statement shall show, in addition to the above required facts, the number, size, and kind of water wheels employed; the head under which each wheel is operated; the extent of the power produced, ana the purposes for which and the places where it is used; and the point where the water is returned to the natural stream. 9 If the water claimed to have been appropriated is used for mining’, the statement shall show, in addition to the above required facts, the name of the mine and the mining district in which it is situated; the nature of the material mined, and the place where the water is returned to the natural channel of the stream. Within sixty days after the expiration of the six months allowed for filing statements of claims, the State Engineer shall tabulate the facts con¬ tained in the different statements filed; a copy of said tabu¬ lation shall be immediately filed in the office of the clerk of said court, and a copy in the office of the county recorder of each county which embraces any part of said river system or water source. ,03, p. 92; '05, p. 149. 1274. Id. Statements to be filed. Failure to make statement a bar. The clerk of said court shall enter the statement in a book to be kept for that purpose and shall file and preserve the same in his office, noting the date of filing. The filing of each statement 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 state¬ ment of the claim to the clerk of the court within six months after the the first publication of the notice pro¬ vided for in the next preceding section shall be forever barred and estopped from subsequently asserting any rights there¬ tofore acquired to the use of water of said river system or water source, and shall be held to have forfeited all rights to the use of said water theretofore claimed by him; provided, that any claimant upon whom no other service of said notice shall be made than by publication in the newspaper may apply to the court for permission to file a statement of claim after the time therefor has expired, and the court or judge thereof, may extend the time for filing said statement, not exceeding one year from the first publication of said notice; but, before said time is extended, the applicant shall give notice by publication in some newspaper having general cir¬ culation on said river system, to all other persons interested in the water of that 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 present affidavits as to the matter of actual notice of appli¬ cation. ’03, p. 93; ’05, p. 150. 10 t 275 Id. Referee to be appointed. At the expiitition' of six months after the first publication of the aforesaid notice, the district Ci)urt of the county in which said state¬ ments of claim have been filed may appoint a referee or or referees, not exceeding three, to take testimony and determine the rights of said claimants to the use of the water of said river system or water source, as in other equity cases. Any claimant may object to the appointment of any person as referee for the same cause for which challenges for cause may be taken to a petit juror in the trial of a civil action. Such objection must be heard and disposed of by the court, or a judge thereof, and affidavits may be read and witnesses- examined concerning the same. ’03, p. 93; ’05, p. 151. 1276. Id. Oath, Power of referee The referee or ref¬ erees, before proceeding to hear any testimony, must be sworn well and truly to hear and determine the facts and issues re¬ ferred to them, and true findings render according to the evi¬ dence, and he or they shall have power to administer oaths to all witnesses produced before him or them. ’03, p. 93; ’05, p. 151 1277. Id. Statemetits iti place of pleadings. Maps and records of eogitieer’s office evidence. The statements filed 1 ) 3 ’ the claimants shall stand in the place of pleadings, and issue ma 3 " be made thereon. The 3 ’ shall, unless the court de¬ termines the matter itself without a reference, be referred and delivered to the referee or referees, with all other files and pa¬ pers relating to water claims of said river system or water source, including the statement and map filed by the State Engineer, who shall, before the expiration of the six months allowed for filing statements of claim, as aforesaid, file with the clerk of said court, and with the county recorder of each county which embraces any part of said river S 3 ’stem or water source, a cop 3 ’ of the map of said river S 3 ’stem or water source, made in pursuance of his survey thereof; and when¬ ever requested so to do, the State Engineer shall furnish the court or referee or referees with any information which he may possess, or copies of any of the records of his office which re¬ late to the water of said river system or water source; and in all proceedings for the determination of the rights of claim¬ ants to the water of said river S 3 ’stem or water source, the said m ip.s and records, or certified copies thereof, shall be competent and prima facie evidence of the facts stated there, in or delineated thereon. ’03, p. 93; ’05, p. 151. 11 1278. Id. Amsudmetits permitted. Powers of referee. The referee or referees shall have power to allow amendments to any statement or pleading, as the conrt might do, and upon the same terms and with like effect. He or they shall liave power, and it shall be the duty of the conrt, or referee or referees to take testimony at such times and places within the boundaries of the river system or water source as may be convenient to the respective claimants interested, and the court, or referee or refereesishall determine the rights of all said claimants as hereinafter provided. The court, referee or referees shall give not less than fifteen days notice to the claimants, stating when and where he or they will begin to take testimony; said notice shall be published in some news¬ paper having general circulation on said river s^^stem or water source, and, upon the date named in the notice, the court, referee or referees shall begin to take the said testi¬ mony, and shall continue the same until all the testimony relating to claims to water of said river system or water source is completed; (provided,) that a notice shall be served upon each claimant at least fifteen days before the testimony upon his or its claim, stating the time and place, when and where such testimony will be taken; and said notice shall be served in the same manner as a summons issued out of the •district court. But he or they may grant adjournments from time to time as occasion may require, and during all of said time the map or maps and other records furnished by the State Engineer, as hereinbefore provided, shall be opened to the inspection of all parties interested. ’03, p. 94; ’05, p. 151. 1279. Id. Any interested party may contest. Any person, corporation, or association owning any irri¬ gation works, or claiming any interest in the water of said river system or water source, may contest the rights of any person, corporation, or association that has filed statements of claim for any water of said river system or water source, by filing a written statement of the grounds of such contest with the clerk of said court, within thirty days after the filing of the tabulation of facts provided for in section 1273; which statement of contest shall be verified by the oath of the con¬ testant. Upon the filing of said contest the referee or referees shall fix the time for hearing the sam^, which date shall be not less than thirty days nor more than sixty days from tne time when the notice is served on the party, which notice and the return thereof shall be made in the same manner as summons is served in civil actions in the district courts of this State. ’03, p. 94; ’05, p. 152. * 12 1280. Subpoenas for witnesses The refeiee or referees shall have power to issue subpoenas to witnesses which shall be served in the same manner as subpoenas issued out of the district court, and all witnesses so subpoenaed shall attend and testify, and produce books and papers and documents, as required, before such referee or referees, and said witnesses shall receive the same fees as in civil cases in the district court, to be paid by the party or parties against whom the contest shall be finally determined. ’03, p. 94; ’05, p. 152. 1281. Id. Referees’findings. On the completion of the evidence, the referee or referees shall state, in writing, the facts found by him or them, as to each claim submitted, and the conclusions of law in relation thereto, separately, and shall report the same, with a form of decree to the district court; and said court may review said report and enter decree thereon, or set aside, alter, or modify the same and enter decree thereon so altered or modified, and, when neces¬ sary, may require the referee or referees to amend his or their reports. All the testimony taken by any referee or referees shall be stenographically reported, and the same, together with all other evidence in the matter, shall be transmitted to, preserved, and filed in the office of the clerk of said district court, with the report of such referee or referees. Notice of the filing of the report of the referee or referees shall be given by the clerk, as the court may direct; and exceptions to the lindings and report of the referee may be taken by the parties, as the court shall prescribe by rule. .03, p. 95; ’05, p. 152. 1282. Id. Effect of decree The decree 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 shall set forth the name and postoffice address of the person, corpora,tion, or association entitled to the use of the water; the quantity of water in acre-feet or the flow of water in second feet to be used; the purpose for which the the water is to be used; 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 priority number of the right; the date of the right, and such other matter as will fully and completely define the right of said person, corpora¬ tion, or association to the use of the water. ’03, p. 95; ’05, p. 153. 13 1283, Id. Decree may be appealed from. The decree so entered by the district court may be appealed from to the supreme court, in like manner as from decrees and judgments in other cases; (provided,) that such appeal shall be taken within six months after the entry of said decree, and all pro¬ ceedings on appeal shall be conducted according to the pro¬ visions of the code of civil proceedure, and the practice on appeals from the district court to the supreme court. ’03, p. 95; ’05, p. 153. 1 284. Id. Certificate of water right to be issued. If no appeal is taken from said decree within six months after the same has been entered, or, if the case is appealed, within thirty days after the final decree is entered, it shall be the duty of the clerk of the court making said decree to issue to each person, corporation,or association having been awarded the use of water by said decree, a certificate in duplicate, attested under the seal of the court, setting forth the sub¬ stance of said decree, as specified in Section 1282. One copy of said certificates shall be transmitted, in person or by regis¬ tered mail, to the appr{^priator, who shall, within thirty days, have the same recorded in the office of the county recor¬ der of the county in which the water is diverted from its natural channel, aud the other shall be delivered to the State Engineer, and filed in his office as part of the records thereof. TUe letter “A” shall be prefixed to the priority number of each^certificate so issued to distinguish it from certificates issued by the State Engineer. ’03, p. 95; ’05, p. 153. - 1285. Id. Proceedittgs whea judge or referee is claimant. If the referee shall be a claimant to any water of said river system or water source, all testimony and evidence pertniniug to his claim shall be taken by the district court of the county in which the statements are filed; and if the district judge is a claimant of any of the water of said river system or water source, he shall file his statement in the district court of the adjoining district, and a copy of the • * statement in the court of his own county. In such case the court of the adjoining district shall receive and act upon the referee’s report and enter decree in the matter. ’03, p. 96; ’05, p. 154. STATE WATER DISTRICTS. 1286. State to be divided into water divisious aud dis¬ tricts. To enable an equitable and orderly apportionment of the water to be made among the several persons, corpora- 14 tions, and associations, according to their respective rights/ the State shall be divided into water divisions by the State Engineer, who shall subdivide the same into districts, whicli shall be so constituted as to secure the best protection to the water users and the most economical supervision on the part of the State. Said water divisions and districts shall be created, from time to time, as necessitj'^ therefor arises. The divisions shall be designated by names, and the districts by numbers. ’01, p. 143; ’03, p. 96; ’05, p. 154. 1287. Id. Superititetidetits and supervisors. There shall be a superintendent of each water division, who shall be appointed by the State Engineer with the consent of the Governor, and shall hold his position during the pleasure of the Engineer. There shall be a supervisor for each water district appointed by the Board of Countj^ Commissioners of the county in which he serves, who shall hold his position during the pleasure of said board. ’01, p. 144; '03, p. 96; ’05, p. 154. 1287x Id. Shall give boud. Every supervisor and water commissioner before entering on his duty shall give a bond to the State in the penal sum of $1,000 for the faithful performance of his duty. ’07, p. 56. 1288. Id. Duties of superiutendeut. The superinten¬ dent of each water division shall have control of the district supervisors and of the apportionment of the water in the several disB-icts of his division,under the direction of the State Engineer. He shall execute the laws of the State, and enforce the regulations of the State Engineer, relative to the distribution of water, and perform such other duties as shall be assigned to him by the State Engineer, under whose general supervision he shall act. ’03, p. 96; ’05, p. 154. 1288x. Id. Duties of supervisors. The supervisor of each district shall apportion the water in the natural stream or streams of his district among the several ditches taking water therefrom, according to their respective rights, under the direction of the superintendent of his division. He shall so apportion, regulate, and control the use of the waters of all streams within his district as will prevent waste. ’01, p. 144; ’03, p. 97; ’05, p. 154. 1288x1. Id. Assistauts to supervisors. Each super¬ visor shall have power, in cases of emergency, with the con¬ sent of the superintendent of his division, to employ suit- 15 able assistants to aid hiin in the discharge of his duties. The employment of all such assistants shall terminate when the emergency ceases to exist, or when directed by the super¬ intendent of the division. ’01, p. 14.5; ’03, p. 97; ’05, p. 154. 1288x2. Appeal from superiutetideiit or supervisor to eugiueer. Any person who may deem himself injured or dis¬ criminated against by the enforcement of any rule or regula¬ tion or by act of a division superintendent or district super¬ visor, may apply to the State Engineer for relief b^’’ filing with him a statement of the manner in which he is injured or dis¬ criminated against. ’03, p. 97; ’05, p. 155. 1288x3 Compeusatiou of superiuteudeut. NEach divis¬ ion superintendent shall receive from the State such compen¬ sation as shall be fi.xed by the State Engineer, and the same shall be determined with reference to the extent and character of the service performed by each. ’03, p. 97; ’05, p. 155. 1288x4. Compeusatiou of supervisor. Each district supervisor shall keep a true and just account of the time spent by him in performing his duties, stating the time spent in each county, respectively, into which his district may ex¬ tend, and shall present a true copy thereof, verified by oath, to the Board of County Commissioners of the county in which the work may have been done. And the said Board of County Commissioners shall, upon approval thereof by the superin¬ tendent of the water division, allow him the sum of three dol¬ lars per day for each day he shall have been actively em¬ ployed, to be paid by the county in which the work has been performed. He shall, in like manner, keep and report the time of all assistants employed in his district, which, when approvea in the manner aforesaid, shall be paid by the Board of County Commissioners of the county in which the work was done, at the rate of two dollars per day. ’01, p. 145; ’03, p. 97; ’05, p. 155. CHAPTER 2 . Appropriatiott of water; proceedings; certificate. 1288x3. Rights to uuappropriated water. Rights to the use of any of the unappropriated water in the State may be acquired by appropriation, in the manner hereinafter pro- 16 vided, and not otherwise. The appropriation must be for some useful or beneficial purpose, and, as between appropria- tors, the one first in time shall be first in right. R. S. ’98, Sec. 1261, 1262; M)3, p. 97; ’05, p. 155. 1288x6 Application for unappropriated water. Any person, corporation, or association, to hereafter acquire the right to the use of any public water in the State of Utah, shall, before commencing the construction, enlargement, or extension of any ditch, canal, or other distributing works, or performing similar work tending to acquire the said right or appropriation, make an application in writing to the State Engineer. Such application shall be upon a blank to be fur¬ nished by the State Engineer, and shall set forth the name and postofiice address of the person, corporation, or associa¬ tion making the application; the nature of the proposed use for which the appropriation is intended; the quantity of water in acre feet or the flow of water in second feet to be used, and the time during which it is to be used each year; the name of the stream or other source from which the water is to be diverted; the place on such stream or source where the water is to be diverted,and the nature of the diverting works; and the dimensions, grade, shape, and nature of the proposed divert¬ ing channel; and such other facts as will clearly define the full purpose of the proposed appropriation. If the proposed use is for irrigation, the application shall show, in addition to the above required facts, the legal subdivisions of land pro¬ posed to be irrigated, with the total area thereof, and the character of the soil. If the proposed use is for developing power, the application shall show, in addition to the above required facts, the number, size, and kind of water wheels to be employed; the head under which each wheel is to be oper¬ ated; the extent of the power to be produced, and the pur¬ poses for which and the places where it is to be used; also, the point where the water is to be retured to the natural stream or source. If the proposed use is for mining, the application shall show, in addition to the above required facts, the name of the mine and the mining district in which it is situated, the nature of the mineral mined, and the place where the water is to be returned to the natural stream or source.. The place of diverson and the place of return of the water shall be designated with reference to the United States land corners or mineral monuments, when either the point of diversion or the point of return shall be situated within six miles of the nearest United States land corner. The storage of water by 17 means of a reservoir shall be regarded as a diversion and the points of diversion in such case shall be deemed to include the point where the water is taken from the stream and the cen¬ ter of the impounding dam of the reservoir. The lands to be inundated by the reservoir shall be described as nearly as may be, and by Government subdivisions if upon surveyed land, and the area of the surface thereof when tho reservoir is filled shall be given. R. 8. ’98, Sec 1268, 1269; ’03, p. 98; ’05, p. 155; ’U9, pp. 84, 85. 1288x7. Action of Engineer thereon. On receipt of said application it shall be the duty of the State Engineer to make an endorsement thereon of the date of its receipt, and to make a record of such receipt in a book kept In his office for that purpose. It shall be his duty to examine said application and ascertain if it sets forth all the above required facts, and if not, it shall be returned with the state¬ ment of correction, amendments, or changes required, within thirty days after its receipt, and sixty days shall be allowed for the rehling thereof. If refiled, corrected as required, with¬ in said time the application shall, upon being accepted, take priority as of the date of its original filing, subject to com¬ pliance with the further requirements of the law and the regulations thereunder. An^’- corrected application filed after the time allowed shall be treated in all respects as an original application received on the date of its refiling. The date of the return of the application, with the reasons there¬ for, shall be endorsed on the application and a record made thereof in a book kept for recording applications. Like entries shall be made of the date when corrected applications are received by the State Engineer and of the date when re¬ jected applications are returned to the applicant. Applica¬ tions for a change of the point of diversion or place of use set forth in an^ approved application shall be treated as a corrected application within the meaning of this section, excepting lhat such change of an approved application shall not affect the priority of the original application; provided that no change of the point of diversion or place of use set forth in an approved application shall operate to enlarge the time within which the construction work shall begin or be completed. ’03, p. 98; ’05, p. 156; ’07, p. 248; ’09, pp 85, 86. 1288x8. Notice of application. If not corrected as required, no further proceedings shall be had on such appli- 18 cations, but when filed in compliance with this Title, the State Engineer shall at once at the expense of the applicant, to be paid in advance, publish in some newspaper having a general circulation within the boundaries of the river system or water source from which said appropriation is to be made, a notice of the application showing by whom made; the quantity of water sought to be appropriated; the stream from which the appropriation is to be made, and at what point on the stream; the use for which it is to be approp¬ riated and by what means; which notice shall be published at least once a week for thirty day^s. It is further provided, that any change in the proposed point of diversion or place of use of water from a stream shall be subject to the approval of the State Engineer, under the provisions of section 2818x24 hereof. ’03, p. 98; ’05, p. 150; ’09, p. 86. 1288x9. Protest may be made. Any person, corpora¬ tion, or association interested may, at any time within thirty days after the completion of the publication of said notice, file with the State Engineer, a written protest against the granting of said application, stating the reason therefor, which shall be duly considered by said engineer, who shall approve or reject said application. ’03, p. 99; ’05, p. 157. 1288x10, Applications filed and recorded Action thereon. All applications which shall comply with the provisions of this Title and wuth the regulations of the State Engineer’s office, shall be filed and recorded in a suitable book kept for that purpose; and it shall be the duty of said Engi¬ neer to approve all applications made in proper form and which are not in conflict with prior applications, or where the proposed use will not impair the value of existing rights, pro¬ vided, however, that an application for water made by a homesteader, desert entry man or person in possession of land under a contract to purchase the same, such water to be used exclusively upon the land of such person, may be approved without reference to prior conflict. But, where there is no unappropriated water in the proposed source of supply, or where the proposed use will conflict with prior applications or with existing rights except in the cases in this section expressly provided for. it shall be the duty of the State En. gineer to reject such application, or to approve the same upon the condition set forth in approval that such conflict¬ ing rights be acquired, ’03, p. 99; ’05, p. 157; ’09, p. 86. 19 1288x11. Proceedings after action. The approval or rejection of an application shall be endorsed thereon and a record made of such endorsement in the State Engineer’s office. . d’he application, so endorsed, shall be returned to the applicant. If approved the applicant shall be authorized, on receipt thereof, to proceed with the construction of the neces¬ sary works and to take all steps required to apply the water to the use named in thq application and to perfect the pro¬ posed appropriation. If the application is rejected, the appli¬ cant shall take no steps toward the prosecution of the pro* posed work^ or the diversion and use of the public water, so long as such rejection shall continue in force. ’03, p. 99; ’05, p. 157. 1288x12. May require additional informatiou. Before either approving or rejecting an application, the State Engi¬ neer may require such additional information as will enable him to properly guard the public interests, and may require a statement of the following facts: In case of incorporated companies, he may require the submission of the articles of incorporation, the names and places of residence of its direc¬ tors and officers, and the amount of its authorized and its paid up capital. If the applicant is not an incorporated com¬ pany, he may require a showing as to the name or names of the party or parties proposing to make the appropriation, and a showing of’ facts necessary to enable him to determine whether or not they have the financial ability to carry out the proposed work, and whether or not the said application has been made in good faith. ’03, p. 99; ’05, p. 157. 1288x13. Time for begiuuiug aud completing work. In his endorsement of approval on any application, the State Engineer shall require that actual construction work must begin within six mouths from the date of such approval, and shall state the time within which the construction shall be completed, not exceeding five years from the date of approval; and the time withia which water shall be applied to a beneficial use, not exceeding four years in addition there¬ to. Any applicant feeling'himself aggrieved by the endorse¬ ments which the State Engineer has made upon his applica¬ tion, may appeal therefrom to the district court of the county in which the point of diversion of the proposed appropriation is situated. The construction of the works shall be diligently prose¬ cuted to completion, and if one-fifth of the work is not com- 20 pleted within one-half of the time allowed, as determined by the State Engineer, he may accept and approve, as herein provided, an application for the use of all or any of the waters included in the application of the prior applicant and the right to use such water under said prior application shall thereupon be forfeited, provided, that before a for¬ feiture shall be declared by the State Engineer as provided herein, he shall give the applicant or his assigns sixty daj^s notice by registered mail to his last recorded address to appear on a date to be designated and show cause, if any he has, why his application shall not be declared for¬ feited in whole or in part, and on such date the said appli¬ cant or his assigns shall be permitted to produce any lawful evidence tending to show compliance on his part with the law. At such hearing the State Engineer shall be authorized to hear and consider any and all competent evidence tending to show whether or not the said applicant or his assigns has or have complied with the law; and provided further that the State Engineer shall allow an extension of time on request of the prior applicant equal to the time during which work was prevented by the operation of law, beyond the power of said applicant to avoid. Provided, that the State Engineer shall have power to extend the time for completion of construction or for appli¬ cation to a. beneficial use, but only on account of delays due to physical or engineering difficulties which could not have been reasonably anticipated and in no case shall an extension of time for completion of construction be made that would place the date of proof of completion of construction more than five years from the date of approval and the proof of beneficial use more than nine years from the date of approval, except that the State Engineer shall allow an extension of time during which work was prevented by the operation of law beyond the power of said applicant to avoid. It is further provided that in case of the works con¬ structed by the United States Reclamation Service, or Muni¬ cipal Corporations, the State Engineer may, for good cause shown, extend the time for completion of construction and application to beneficial use beyond the limits specified in this section. R. S. ’98, Sec. 1270, 1271; ’03, p. 100; ’05, p. 157; ’07, p. 249; ’09, pp. 86, 87 1288x14 Aggrieved party may bring action. Any applicant or protestant, who is dissatisfied with the action 21 of thft State Engineer may bring an action in the district court of the county in which the point of diversion of the water proposed to be appropriated is situated, for the pur¬ pose of adjudicating the questions involved. Such action must be brought within sixty days of notice of the action of the State Engineer, and if not brought within that time, the Engineer shall proceed In accordance with the action taken thereon by him. But if such action be brought within said time, notice thereof shall be filed with the State Engineer, and thereafter he shall take no further action upon said appli¬ cation or protest until the questions involved are determine^ by the courts. Upon the determination of the case bj^ the courts, the clerk of the district court in which the decree is filed shall immediately file a certified copy thereof with the State Engineer, and thereupon he shall proceed in accordance with such decree. ’03, p. 100; ’05, p. 158; ’09, pp. 87, 88. 1288x15. State Eagineer to tiotify applicant. Upon completion of work proof and map must be filed. Sixty days before the date set for the completion of the works to divert the water sought to be appropriated, the State En¬ gineer, shall notify the applicant by registered mail of the date when proof of completion of works shall be due. On or before the date set for completing the works to divert the water in accordance with his application therefor^ the applicant shall make proof thereof, by filing in the State Engineer’s office, on blanks to be furnished by the State En¬ gineer, a statement descriptive of the work. done. Said statement shall be sworn to by the applicant and by two disinterested witnesses, one of whom shall be a reputable hydraulic engineer and shall be accompanied by a map, pro¬ file and drawings, which shall be made on tracing linen and shall show fully and correctly, the location with reference to the United States land surveys; the nature and extent of the completed works; the natural stream or source from which and the place where the water Is diverted; the place and manner of connecting with other works or streams; the ground and grade lines, the cross-sections and dimensions of the various forms of the diverting channel; the character of the materials moved and used in construction; the several appliances used to divert, measure and regulate the water; the character of all structures which cross, support or con¬ stitute the diverting channel or any part of it and such other matter as will fully and correctly delineate the work done and conform to the general rules and regulations of the state Rngineer’s office. The map, profile and drawings shall be certified to under oath, by the engineer who has made the same and by the applicant whose works thf* 3 " represent, said certificates to be substantially of such form as the State Engineer shall by general rule prescribe. As soon as proof of completion of the works has been accepted and approved, the State Engineer shall issue his certificate of completion, which shall describe the location, extent and capacity of the works, and place such limitations on the water rights as shall be warranted by the condition of the works, but in no manner extending the rights described in the application. Proof made subsequent to the date set for the completion of the works shall cause the postponement of the priority from the date of the original application to the date when the proof is made and the applications subsequent in time shall have the benefit of such postponement of priority, pro¬ vided, that in case of works constructed by the National Government, the official plans, maps a.nd specifications approved by the proper officer of the Reclamation Service, shall be accepted as a full compliance with the requirements of this section, relating to maps, profiles and drawings. ’03, p. U)0; ’05, p. 115; ’09, pp, 88, 89. Certificate of Appropriation. Effect of. 1288x16. State Engineer to notify Applicant. Sixty days before the date set for the application of the ’water to a beneficial use, the State Engineer shall notify the applicant by registered mail when proof of application of the water to a beneficial use shall be due. Upon it being made to appear to the satisfaction of the State Engineer that an appropria¬ tion has been perfected in accordance with the application therefor, and that the water applied for has been put to a beneficial use, it shall be the duty of the State Engineer to issue a certificate, in duplicate, to the party making the same, setting forth the name and postoffice address of the person, corporation or association by whom the water is to be used; the quantity of water in acre feet or the flow of water in second feet; the purpose for which the water is to be used; the time during which the water is to be used each year; the name of the stream or source from which the water is to be diverted; the place on the stream or source where the water is to be diverted; the priority number of the right; the date of the appropriation, and such other matter as will fully and completely define the extent and conditions of 23 actual application of the water to a beneficial use; in no manner, however, shall the certificate extend the rights described in the application, as further defined by the certifi¬ cate of completion. Failure to make proof of beneficial use of the water on or before the date set therefor, shall cause the postponement of the priority from the date fixed there¬ tofore, to the date when the proof of beneficial use of the water is made and applications subsequent in time shall have the benefit of such postponement of priority. One copy of said certificate shall be filed in the office of the State En¬ gineer, and the other copy shall be delivered to the approp- riator and shall within thirty days be recorded by him in the office of the county recorder of the county where the water Is diverted from the natural stream or source. The certificate so issued and filed shall be prima facie evidence of the approp- riator’s right to the use of the water in the quantity, for the purpose and during the time mentioned therein and shaill be evidence of such right. The letter “B” shall be prefixed to the priority number of each certificate so issued to dis¬ tinguish it from certificates issued by the district courts. ’03, p. 101; ’05, p. 159; ’09, pp. 89, 90. 1288x1 7. Priority. The priority number of an appropri¬ ation shall be determined by the date of receiving the written application in the State Engineer’s office, except as provided in sections 1288x15 and 1288x16 hereof. Rights claimed under applications for the appropriation of water may be trans¬ ferred or assigned by instruments in writing. Such instru¬ ments when acknowledged or proven and certified in the manner provided by law for the acknowledgment or prov¬ ing of conveyances of real estate, may be filed and recorded in the office of the State Engineer, and shall from the time of filing the same for record in said office impart notice to all persons of the contents thereof. For recording any such instrument the State Engineer shall collect the same fees as are allowed by law to C(mnty recorders for like service, in addition to the fee for filing. ’03, p. 101; ’05, p. 159; ’09, p. 90. CHAPTER 3. General Provisions Concerning Water. 1288x18. Waters public property. The water of all streams and other sources in this State, whether flowing 24 above or under the ground, in known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof. ’03, p. 101; ’05, p. 159. 1288x19 Standard of tneasuretuetit. .The standard unit of measurement of the flow of water shall be the dis¬ charge of one cubic foot per second of time, which shall be known as a second foot; and the standard unit of measure¬ ment of the volume of water shall be the acre foot, being the amount of water upon an acre covered one foot deep, equiva¬ lent to forty-thrte thousand five hundred and sixty cubic feet R. S. ’98, !Sec. 1282, 1283; ’01, p. 143; ’03, p. 101; ’05 p. 100. 1288x20. Beneficial use. Beneficial use shall be the basis, the measure, and the limit of all rights to the use of water in this State. R. S. ’98, Sec. 1262; ’03, p. 101; ’05, p. 160. 1288x21. Eminent domain. The use of water for bene¬ ficial purposes, as provided in this Title, is hereby declared to be a public use. Any person, corporation, or association shall have a right of way across ana upon public, private, and corporate lands, or other right of way, for the construction, maintenance, repair, and use of all necessary reservoirs, dams, water gates, canals, ditches, flumes, tunnels, or other means of securing, storing, and conveying water for irriga¬ tion or for any necessary public use, or for drainage, upon payment of just compensation therefor, but such right of way shall in all cases be exercised in a manner not to unneces¬ sarily impair the practical use of any other right of way, highway, or public or private road, nor to unneccessarily injure any public or private property. 8uch right may be acquired in the manner provided by law for the taking of private property for public use. R. S. 98, Sec 1277; ’03, p. 103; ’05, p. 160. 1288x22. Id RigRt to enlarge existing canal. When any person, corporation, or association desires to convey water for irrigation or any other beneficial purpose, and there is a canal or ditch already constructed that can be enlarged to convey the required quantity of water, then such person, corporation, or association, or the owner or owners of the land through which a new canal or ditch would have to be constructed to convey the quantity of water necessary, shall have the right to enlarge said canal or ditch already constructed, by compensating the owner of the canal or ditch to be enlarged, for the damage, if any, caused by said enlargement; provided, that said enlargement shall 25 be done at any time from the first day of October to the first day of March, or any other time that may be agreed upon with the owner of said canal or ditch. R. S. ’98, Sec 1278; 03, p. 103; ’05, p. 160. 1288x23. Water reverts upon abaudoumeiit. When'the appropriator or his successor in interest abandons or ceases to use water for a period of seven years, the right ceases, and thereupon such water reverts to the public, and may be again appropriated, as provided in this Title; but questions of abandonment shall be questions of fact, and shall be deter¬ mined as are other questions of fact. R. S. ’98, Sec, 1262; ’03, p. 101; ’05, p. 160. 1288x24. Place of diversioo may be changed. Vested rights protected. Any ;person, corporation, or asso¬ ciation entitled to the use of water, may change the place of diversion and may use the water for otner purposes than those for which it was originally ap¬ propriated, but no such change shall be made, if it impairs any vested right,with<)ut just compensation; no change of point of diversion or purpose of use shall be made except on the approval of an application of the owner by the State Engineer. Before the approval of an application the State Engineer must, at the expense of the applicant, to be paid in advance, give notice thereof by publication in some news¬ paper having general circulation within the boundaries of the river system or water source in which the point of diversion of the water is located; such notice shall give the name of the applicant, the quantity of water involved, the stream or source from which the appropriation has been 'made, the point on the stream or source where the water is diverted, the point to which it is proposed to change the diversion of the water, the place, purpose and extent of present use, and the place, purpose and the extent of proposed use. Said notice to be published at least once a week for a period of thirty days. Any person, corporation or association inter¬ ested, may at any time within thirty days after the com¬ pletion of the publication of said notice, file with the State Engineer a protest against the granting of said application for change of point of diversion or purpose of use, stating the reason therefor, which shall be duly considered by the State Engineer who shall approve or reject said application for change of point of diversion or purpose of use. Such appli¬ cation shall not be rejected solely for the reason that such 26 change would impair vested rights of others, but the appli¬ cation if otherwise proper may be approved conditionally upon such conflicting rights being acquired. The determina¬ tion of the State Engineer shall be final unless appeal is taken to the district court of the county in which the point of diversion of water is situated, within sixty days of notice of action of the State Engineer. Any person holding an approved application for the appropriation of water may change the point of diversion or place of use under proceed¬ ings taken substantially as above set forth. R. S. ’98, Sec. 1263; ’03, p. 102; ’05, p. 160; ’09, pp. 90, 91. 1288x25. Water may be commingled and recovered. Any appropriated water may be turned into the channel of any natural stream, or into a reservoir constructed across the bed of any natural stream, and commingled with its waters and then be recovered, but, in so doing, the original water in such stream or reservoir must not be diminished in quantity or deteriorated in quality. R. S. ’98, Sec. 1264; ’03, p. 102; ’05, p. 161. 1288x26. Headgates. Every person, corporation, or as¬ sociation using water in this State shall construct and main, tain a substantial headgate at the point where the water is diverted, and a measuring device, as near the head of the di¬ verting channel as is practicable, for the purpose of regulat¬ ing aud measuring the quantity of water that may be di¬ verted into the channel from the stream or other source. Said headgate and measuring device shall be of such pattern as the State Engineer shall approve, and shall be constructed within thirty days after request from him. Any person, cor¬ poration, or association failing to comply wdth the provis¬ ions of this section shall be guilty of a misdemeanor, and the State Engineer is hereby authorized to furnish plans and bills of material for such devices, at the expense of the State, when in his judgment the use of such devices will be encour¬ aged thereby. ’01, p. 145; ’03, p. 102; ’05, p. 161. 1288x27. Priority among appropriators Appropria- tors shall have priority among themselves according to the dates of their respective appropriations, so that each appro- priator shall be entitled to receive the whole supply to which his certificate entitles him before any subsequent appropria- tor shall have any right; provided, that whenever the natur¬ al flow of any stream shall have receded in volume in the an¬ nual low water stage, then the rights of all users to such flow at such stage shall be deemed to be equal as to priority, 27 and the water, when at or below such stage, shall be appor¬ tioned pro rata among said users. But In times of scarcity, while priority of appropriation shall give the better rights as between those using water for the same purpose, the use for domestic purposes shall have preference over use for all other purposes, and use for agricultural purposes shall have pref¬ erence over use for any other purpose except domestic use. R. S. ’98, Sec. 1265; ’03, p. 102; ’05, p. 161. 1288x28. Stock may be taken in other irrigation com¬ panies. Any irrigation or reservoir company, incorporated and existing under the la ws of this State, may purchase or subscribe for the capital stock of any other similar corpora¬ tion which, at the time of such purchase or subscription, shall be or is about to be incorporated; provided, that such pur¬ chase or subscription shall be made only when permitted by the original articles of incorporation or by amendment there¬ to proposed and adopted according to law, and such corpor¬ ations are hereby permitted and authorized to amend their articles of incorporation so as to authorize such purchase or subscription. R. S. ’98, Sec. 1276; ’03; p. 102; ’05, p. 162. 1288x29. Ditches must be kept in repair to prevent damage. The owner or owners of any ditch, canal, flume, or other water coarse shall maintain the same in repair, so as to prevent waste of water or damage to the property of others. Such persons are required, by bridge or otherwise, to keep such ditch, canal, flume, or other water course in good repair where the same crosses any public road or highway, so as to prevent obstruction to travel, or damage or overflow to such public road or highway. R. S. ’98, Sec. 1279; ’03, p. 103; ’05, p. 162. 1288x30. Each person or corporation liable for propor¬ tionate expense. When two or more persons, companies, or corporations are associated by agreement or otherwise, in the nse of any dam, canal, reservoir, ditch, flume, or other means of conserving or conveying water for the irrigation of laud, or for other purposes, each of them shall be liable to the other for the reasonable expense of maintaining, operating, and controlling the same, in proportion to the share in the use or ownership of the water to which he is entitled. If any per¬ son,company,or corporation refuses or neglects to pay his pro¬ portion of such expense, after five days’ notice in writing de¬ manding such payment, he shall be liable therefor in an action for contribution; provided, that in any company or corpora- 28 tion owning or controlling more than one canal or ditch, for the purpose of improving or keeping the same in repair, the users of water shall not be required to pay any expenses or assessments in any canal or ditch, other than the one in which they are directly interested. R. 8. ’98, Sec. 1280; ’03, p. 103; '05, p. 1«2. 1288x31. Water rights appurteiiatit to laad under govemmeut works. All water hereafter appropriated for ir¬ rigation purposes from works constructed or controlled by the United States shall be appurtenant to specified lands owned or occupied by the persons claimi ng the right to use the water, so long as the water is used beneficially thereon; provided, that if for any reason it should at any time become impracticable to use water beneficially or economically for the irrigation of any land to which the right of the same is ap¬ purtenant, said right may be severed from said land, and si¬ multaneously transferred, and become appurtenant to other land, without losing priority of right theretofore established, if such change can be made without detriment to existing rights; and in case of such change, the owner of such water right shall execute and acknowledge a proper instrument of transfer describing therein the land from and to which such water is transferred, which instrument shall be recorded in the county recorder’s office of the county in which the land is situated. ’05, p. 162. 1288x32. ,Rights to water pass with laud. Exceptions A right to the use of water appurtenant to the land shall pass to the grantee of such land, and, in cases where such right has been exercised in irrigating different parcels of land at different times, such rights shall pass to the grantee of any parcel of land on which such right was exercised next preceding the time of the execution of any conveyance there¬ of; subject, however, in all cases to payment by grantee of any such conveyance of all amounts unpaid on any assessment then due upon any such right; provided, that any such right to the use of water, or any part thereof, may be reserved by the grantor in any such conveyance, by making such reservation in express terms inserted in such conveyance, or may be separately conveyed. R. S. ’98, Sec. 1281; ’03 p. 104; ’05, p. 163. 1288x33. Water rights trausferred by deed. Excep¬ tions. Water rights shall be transferred by deeds, in sub¬ stantially the same manner as real estate, except when they are represented by shares of stock in a corporation, and such 29 deeds shall be recorded in the office of the recorder of the county where the place of diversion of the water from its natural channel is situated. Every deed of water right so recorded shall, from the time of filing the same with the recorder for record, impart notice to all persons of the con¬ tents thereof, and subsequent purchasers, mortgagees, and lien holders shall be deemed to purchase and take with notice. ’03, p. 104; ’05, p. 163. 1288x34. Id. Deeds must be recorded. Every deed of water right within this State hereafter made, which shall not be recorded as provided in this title, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same water right, or any por¬ tion thereof, where his own deed shall be duly recorded. ’03, p. 104; ’05, p. 163. 1288x35. Penalty. Any person, corporation, or association who shall in any way interfere with, injure, destroy, or remove any dam, headgate, weir, or other appliance for the diversion, apportionment, or measurement of water, or who shall interfere with any of the persons authorized by this title to apportion water, while in the discharge of their duties, shall be guilty of a misdemeanor, and shall also be liable in damages to any person injured by such unlawful act. ’03, p. 104; ’05, p. 163. 1288x36. Obstructiotts to right of way forbidden. Whenever any person, corporation, or association has the right of way for canals or other water courses, it shall be unlawful for any person to place or maintain in place any obstruction, by fence or otherwise, along or across such canals or water courses, without providing gates sufficient for the passage of the owners of such canals or water courses or their agents. Any person, corporation, or association violating the provisions of this section shall be guilty of a misdemeanor. R. S. ’98, Sec. 1286; ’03, p. 104; ’05, p 163. 1288x37. Legal advisors to State Engineer. In all matters requiring legal advice in the performance of his duties and the prosecution or defense of any action grow¬ ing out of the performance of his duties, the Attorney General of the State, and the district attorney of the district in which any legal question arises, shall be the legal advisers of the State Engineer, and they are hereby required to perform any and all legal services required of them by him, without other compensation than their salaries now or hereafter fixed by law. ’03, p. 105; ’05, p. 164. 30 1388x38. Assistant atid equipment. For the purpose of carrying into effect the provisions of this title the State Engineer shall have power to employ all necessary assistants, purchase all necessary equipment, and do all other necessary things, the cost of which shall be paid by the State, upon presentation to the State Auditor of monthly statements, certified by the State Engineer and approved by the State Board of Examiners; provided, that no expense shall be incurred by the State Engineer in the performance of his duties which will exceed the amount appropriated for that purpose. ’01, p. 142; ’03, p. 105; ’05, p. 165. 1288x39. Fees of referee aud stenographer.. The fees of referee and stenographer shall be fixed by the court, and, together with any other expenses not herein provided for that may be incurred in carrying out the provisions of this title, shall be paid out of the State Treasury, upon certifi¬ cates from the proper district judge to the State Auditor of the amount due each person for such service. ’03, p. 105; ’05, p. 165. 1288x40. Who may be made parties to actions. Damages joint ownership. In any action hereafter com¬ menced for the protection of rights acquired to water under the laws of this State, tne plaintiff may make any or all per¬ sons who have diverted water from the same stream* or source parties to such action, and the court may in one judgment settle the relative priorities and rights of all the parties to such action. When damages are claimed for the wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdict, or by the court if the case be tried without a jury, and judg¬ ment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of sev’eral defendants, and may determine the ultimate rights of the the parties between themselves In any action concerning joint water rights, or joint rights in water ditches, unless partition of the same is asked by the parties to the action» the court shall hear and determine such controversy as if the same were several as well as joint. R. S. ’98. Sec. 1274; ’03, p. 105; ’05, p. 165. 1288x41. Effect of certain repeal. The repeal by the Revised Statutes of sections 2403-2427, both inclusive, of the Compiled Laws of Utah, 1888, shall not be construed to effect the existence of any district or company organized under the aforesaid sections; but any such company or 31 district shall, notwithstanding such repeal, continue in existence with all the rights, [)rivileges, and limitations here¬ tofore conferred or imposed upon it by law, until disincor¬ porated or dissolved according to law. In any case in which an irrigation company or district shall have a right of action against a delinquent member of such company or district for the non- payment of taxes voted according to law, the board of directors thereof may proceed to sell the interest of such member in the canals or ditches of such company or dis¬ trict and his right to the use of the water flowing therein, K. S. ’98, Sec. 1287; ’03, p. 106; ’05, p. 165. 1288x42. Dissolution of irrigation district. When ever a petition is presented to the board of trustees of any irrigation company or district organized under section 2403-2427, C. L. U. 1888, signed by one-fourth of the landhol¬ ders in the district, asking for the abandonment • of further operations by the company or district, the board of trustees thereof shall call special meeting, at which the question of such abandonment shall be submitted. Notice of the time and place and subject of such meeting shall be given by the board of trustees of the district at least ten days previous thereto, by advertising at least three times in some news¬ paper having general circulation in the district, or by post¬ ing notices in three public places therein. If three-fifths of the landholders of the district voting at such election shall vote for such abandonment. It shall be the duty of the board of trustees to petition the district court of the county in which the greater portion of the lands of the district are situated for the winding up of the affairs of such company or district; and thereafter^ proceedings shall be had which shall conform as nearly as may be with the proceedings for the voluntary dis¬ solution of corporations. .R, S.’98, Sec. 1288; ’03, p. 71; ’05, p 166. 1288x43. “Received” atid “filed” defined. When¬ ever the word “received” is used in this title, with reference to any paper deposited in the office of the State Engineer, it shall be deemed to mean the date when such paper was first received at the State Engineer’s office; and whenever the term “filed” is used in such reference, it shall be deemed to mean the date when such paper was completed and filed in said office. ’05, p, 166. Approved, March 11, 1909. Section 970x» Compiled Laws of Utah, 1907, as Amended 1909* 970x. Fees of State Engineer The State Engineer shall collect the following fees, which shall be paid by him into the State Treasury on the first Monday in January, April, July and October of each year. For examining and approving plans and specifications for any dam, one dollar for each and every foot in height of the dam to be built; and, if necessary to inspect the site where the dam is to be built, an additional charge of ten dollars per day and expenses shall be paid. For inspecting any diverting works, by request, ten dol¬ lars per day and expenses. For examining and filing applications to appropriate any quantity of water up to and including ten cubic feet per second, for each such application two and one-half dollars* Applications for water that specify quantities greater than ten cubic feet per second, a fee of one dollar for each cubic foot above the ten cubic feet hereinbefore mentioned. For applications which contemplate the storage of water, a minimum fee of $2.50 for each such application. Applications for water that specify quantities greater than one hundred twenty-five acre feet, a fee of two cents for each acre foot of water to be stored. Provided, however, that when the filing fee for any appli¬ cation for water shall exceed $1000, the balance of the fee in excess of $1,000, may at the option of the applicant, be paid at the time when proof of the completion of the works is submitted For examining map, profile and drawings that are part of the proof of appropriation, five dollars. For approving and recording completed applications, two and 50-100 dollars. For issuing certificates of appropriation, each, one dollar. For examing and filing notices of protest, each, two and 50-100 dollars. For filing any other paper, one dollar. For certified copy of any paper, per folio, twenty cents. For blue print copy of any map, profile or drawing, per square foot, ten cents. For each certificate to copy of paper, drawing or map, fifty cents; Provided, that the provisions of section 970x shall not apply to works prosecuted under the supervision of the United States Reclamation Service.