Marriott v. Wilhelmsen

The Utah Supreme Court recently issued its opinion in the case of Marriott v. Wilhelmsen. This case focuses on the following question: If a person dies while they are challenging the State Engineer's denial of their Application to Appropriate, does their legal challenge die with them?

In 1997, Randy Marriott filed an Application to Appropriate, in which he sought the right to divert and use outflow water from a treatment plant for irrigation and stockwatering uses. In 2018, the State Engineer rejected the Application and also denied Randy's request for reconsideration. Randy then filed an action in district court seeking judicial review of the State Engineer's decision. While the case was pending in the district court, Randy passed away. Randy's attorneys filed a motion with the district court to substitute Kami Marriott, who was the personal representative of Randy's estate, as the plaintiff so that the case could continue. The district court, however, denied the motion and dismissed the case. Kami appealed to the Utah Supreme Court.

Rule 25(a) of the Utah Rules of Civil Procedure provides that substitution of a deceased party is allowed only if "(1) the claims survived the party’s death; (2) the proposed substitute is a proper party; and (3) the motion is timely." The Court began its decision by noting that Kami had the burden to demonstrate that Randy's legal claims survived his death. 

The Court first examined if Randy's claims survived his death under common law. Kami asserted that Randy's claims "related to real property or property rights," and therefore survived under common law. The Court disagreed because Randy never had a perfected water right and that the Application to Appropriate created no right to water. The Court declined to extend the common law to protect Randy's claims because Randy had "no present property interest."

The Court then examined if any statutory provisions allowed Randy's claims to survive his death. Kami asserted that because the Utah water code allows Applications to Appropriate to be assigned to new owners, that claims related to the denial of an Application to Appropriate should survive death. The Court disagreed and noted that assignability and survival are not the same thing. The Court held that because Kami could not point to any statute that would allow for Randy's claims to survive his death, the district court was correct in dismissing Randy's claims following his death.

In the end, the Utah Supreme Court affirmed the district court's decision that Kami could not be substituted as a plaintiff for Randy and that the case should therefore be dismissed.

To read the full opinion, click here.

Hall v. Springville City

The Utah Court of Appeals recently issued its opinion in the case of Hall v. Springville City. This case focuses on Springville City's ownership claims to water rights that were included in the Proposed Determination for the Hobble Creek area. 

The case concerns water rights that were originally associated with the Anderson Ranch and Clark Ranch in Hobble Creek Canyon. The ranches were homesteaded in the late 1800s, and water rights were established by diligence (i.e., by diversion and use of surface water prior to 1903). In 1928, the Springville Irrigation Company was formed, and the Andersons and Clarks conveyed irrigation water rights to the Company in exchange for water shares. In the 1940s, the City determined to buy water rights in Hobble Creek Canyon in order to expand its water system to serve its growing population. The City acquired the Anderson Ranch and the Clark Ranch, along with all water rights and all Company water shares associated with the ranches. A few years later, the City sold the ranches to Ralph Phillips. The land deed noted that "All water and water rights heretofore used on the aforesaid granted premises have been separately sold and transferred and this conveyance is made subject to the reservation of all water rights excepting only a flood water right to which the cultivated or improved part of the aforesaid granted premises shall be entitled when and as long as such flood water is available." The City and Mr. Phillips subsequently entered into agreements allowing Mr. Phillips to use the water rights and water shares until the City needed the water for its own purposes.

Decades later, the subsequent owners of the ranches filed Diligence Claims and Water Users Claims asserting year-round rights from springs for irrigation, domestic, and stockwatering purposes. These asserted water rights were included in the Proposed Determination published in 1986. The City filed objections to the Proposed Determination, asserting that the water rights were invalid because (among other things) the City was "the owner of the entire flow of water from the sources given" for the water rights. 

In 2020, the City filed motions for summary judgment on its objection, in which the City sought to have the district court declare the water rights invalid because the landowners' predecessors had deeded all water rights to the City in the 1940s. The landowners opposed the motions and argued, among other things, that the "flood water" language in the 1940s deed gave them a legitimate basis for their water rights. The Special Master ruled in the City's favor, which the district court later confirmed. The landowners appealed the case to the Utah Court of Appeals.

The Court began its opinion by determining that when the City acquired title to the ranches, the City also acquired all water rights and all water shares. The Court then examined the "flood water" language from the 1940s deed and determined that the language did not convey any water rights from the City to Mr. Phillips but, instead, granted Mr. Phillips the ability to take advantage of any natural flooding that occurred; i.e., any water that naturally escaped the stream channel during periods of high flow. The Court further noted that even if the interpretation of "flood water" was ambiguous, the extrinsic evidence supported the City's assertion that it did not convey any water rights to Mr. Phillips. Additionally, the Court noted that the Utah Constitution prohibits municipalities from selling or conveying away its water rights, which further confirms that the City did not convey any water rights to Mr. Phillips. Finally, the Court disagreed with the landowners' assertion that the City and Mr. Phillips entered into an exchange of water rights.

The Court also examined the landowners' claim that they had been denied due process rights because they had not been given "adequate notice" of the City's claims of ownership of the water rights. The Court determined that the City's objection was satisfactory under the relevant statutes at the time and that the landowners were given sufficient opportunity to engage in discovery and litigate the relevant issues in the adjudication. 

Based on these determinations, the Court of Appeals affirmed the district court's decision that the water rights were invalid.

(The attorneys at Smith Hartvigsen were proud to represent Springville City in this case.)

To read the full opinion, click here.

New Proposed Fee for Public Water Systems

The Utah Division of Drinking Water has issued its proposed new fee policy for public water systems. The fee is based on water delivered for human consumption and other domestic uses, including landscaping, and is set to go into effect in July 2026. The proposed fee is $0.0331 per 1,000 gallons. It is estimated that the fee will be about $0.38 per month, or $4.59 per year, per connection. 

There are several exceptions to the fee, including water wholesaled to another public water system, water used only for agricultural purposes that is not delivered through a public drinking water system, and water delivered to an end user for industrial use. There are also conservation incentives that may reduce the fee by up to 10%. 

There will be several public meetings to discuss the fee, including the following:

Monday, August 18, 2025 at 2:00 pm (DEQ board room, 195 N 1950 W, Salt Lake City)

Thursday, August 21, 2025 at 2:30 pm (virtual meeting online)

Tuesday, August 26, 2025 at 11:30 am (presentation at Rural Water Association of Utah's fall conference)

The official fee hearing will be held on Thursday, September 11, 2025, but the time has not yet been determined.

For more information about the proposed fee and the planned meetings, click here.

To read the draft fee policy, click here.

Adoption of the Great Salt Lake Distribution Management Plan

The Division of Water Rights has published notice of its intent to adopt the Great Salt Lake Distribution Management Plan on October 1, 2025. A copy of the draft Plan can be viewed by clicking here.

For additional information regarding the notice, click here.