Public Meeting Regarding Proposed Determination for Big Cottonwood Creek Area

The Utah Division of Water Rights recently published the Proposed Determination for the Big Cottonwood Creek area (Book 57-18). The Division has set a public meeting to discuss the Proposed Determination. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Big Cottonwood Creek area
When: January 10, 2024, 4:00 to 5:00 pm
Where: Cottonwood Heights City Hall, 2277 East Bengal Blvd.
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729835), the State Engineer has completed a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Big Cottonwood Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. In light of the completion of this work, the Division of Water Rights will hold a public meeting in order to review the proposed determination and answer questions. Representatives from the Division of Water Rights will be available during this time to discuss water rights within the proposed determination and answer any questions. If individuals cannot attend but have questions regarding the adjudication process or water rights within the Big Cottonwood Creek Subdivision, please contact Mike Drake at 801-538-7397.

Agenda:
1.  Introduction: Mike Drake, Assistant State Engineer - Adjudication
2.  Adjudication Process Review
3.  Public Comments and Questions

The meeting will also be broadcast electronically at https://waterrights.utah.gov/meetinfo.

For more information regarding this meeting, click here.

Metropolitan Water District v. Sorf

The Utah Court of Appeals recently issued its decision in the case of Metropolitan Water District of Salt Lake & Sandy v. Sorf. The primary issue in the case was enforcement of an easement for a water pipeline. This case has been ongoing for many years. (Click here to read about a 2019 decision by the Utah Supreme Court in the same case.)

The District operates the Salt Lake Aqueduct, which is a large pipeline that runs for 42 miles through Utah County and Salt Lake County -- including through the backyard of Zdenek Sorf. The District owns a 125-foot easement for the pipeline, which the District acquired by warranty deed in 1946 from Sorf's predecessor-in-interest. In 2009, Sorf installed some improvements in his backyard, including sheds, a hot tub, decks, rock walls, and a pond, and some of these improvements are within the District's easement. In 2010, the District filed suit against Sorf and sought to have the district court require Sorf to remove the improvements from the easement area. Following a trial, a jury determined that Sorf's improvements did not unreasonably interfere with the District's use and enjoyment of the easement. The district court accordingly granted judgment in favor of Sorf, and the District appealed to the Utah Court of Appeals.

The District argued that district court should have instructed the jury that the placement of any permanent structure within the easement area was unreasonable as a matter of law. Some courts in other states have made this determination with respect to easements for ingress and egress, but not with respect to easements for underground pipelines. The Court of Appeals refused to adopt such a bright-line rule, and instead reiterated the "rule of mutual reasonableness, which is that "the owners of the dominant and servient estates must exercise their rights so as not unreasonably to interfere with the other."

The District also argued that the district court should have asked the jury about the cumulative effect of the improvements on the easement, instead of asking the jury to determine if each individual improvement unreasonably interfered with the District's easement rights. The Court of Appeals determined that if the district court had included a cumulative effect question to the jury, it would have made it more difficult to fashion a remedy; in other words, how would the court know which improvements would need to be removed in order to resolve the issue.

The District also argued that the district court should have limited the testimony of an engineer who testified on behalf of Sorf. In particular, the District argued that the engineer should not have been allowed to testify about possible alternative methodologies that the District could use to rehabilitate and repair the pipeline. The Court of Appeals rejected this argument, and reiterated that the "rule of mutual reasonableness" made it highly relevant how the District might make use of the easement area to operate, maintain, repair, and replace the pipeline.

In the end, the Court of Appeals ruled for Sorf and upheld the decision made by the district court (and the jury).

To read the full opinion, click here.