author: STEWART, Justice:

text:
    2000 UT 3
    SALT LAKE CITY, a municipal corporation, Plaintiff and Appellee, v. SILVER FORK PIPELINE CORPORATION, a Utah corporation, Defendant and Appellant.
    No. 980203.
    Supreme Court of Utah.
    Jan. 7, 2000.
    Rehearing Denied Feb. 25, 2000.

      Roger F. Cutler, Ray L. Montgomery, Christopher E. Bramhall, Joseph Novak, Max D. Wheeler, Rodney R. Parker, Salt Lake City, for plaintiff.
    Benjamin T. Wilson, James L. Warlau-mont, Jeffrey W. Appel, Salt Lake City, for defendant.
   STEWART, Justice:

1 1 Silver Fork Pipeline Corporation (hereinafter "SFPC") appeals the trial court's decision to quiet title in Salt Lake City to nearly .5 cubic feet per second ("ef.s.") of water flowing in Big Cottonwood Creek (the "creek") that SFPC had been diverting at the Kentucky-Utah Mine (the "mine". SFPC also appeals the court's dismissal of its counterclaim seeking reimbursement of amounts it paid Salt Lake to purchase water from the mine. We affirm.

I. THE MORSE DECREE ADJUDICATION OF BIG COTTONWOOD CREEK

112 Big Cottonwood Canyon lies southeast of Salt Lake City. Big Cottonwood Creek flows in a westerly direction down the center of the canyon. Much of the water from rain and snow falling in the Big Cottonwood Drainage Area flows down the mountain slopes, above and below ground, until it discharges into the creek. By 1894, Salt Lake and its predecessors in interest had fully appropriated the water flowing in the creek near the mouth of the canyon by diversion and beneficial use. Nevertheless, in 1907, longstanding disputes over water rights in the creek came to a head. District Judge C.W. Morse resolved these disputes in The Progress Co. v. Salt Lake City, Civil No. 8921 (the "Morse Decree"), aff'd, 53 Utah 556, 173 P. 705 (1918), an adjudication lasting between 1907 and 1914, in which he allocated rights to most of the waters in the Big Cottonwood Drainage Area. Progress was not a general adjudication, and neither SFPC nor any of its predecessors in interest participated therein.

13 The Morse Decree awarded rights of use to all water flowing in Big Cottonwood Creek in sixtiecths under three categories depending on the time of year and volume of water. For our purposes, we need note only that between 1920 and 1984, Salt Lake acquired most of the shares of the creek through purchase and exchange agreements. At the time of this trial, Salt Lake's water rights to the creek ranged between 90.42% and 99.28%.

II. EARLY HISTORY OF THE SILVER FORK AREA AND THE KENTUCKY-UTAH MINE

14 Silver Fork is a community in Big Cottonwood Canyon that lies south of Big Cottonwood Creek. Historically, individuals employed in grazing, timber, and mining resided in the Silver Fork area. The actual population of Silver Fork and other communities in the canyon during any specific period is unclear.

15 There are many mines in Big Cottonwood Canyon, two of which are relevant to this case: the Woodlawn Mine and the Kentucky-Utah Mine. Excavation of the Wood-lawn Mine started around 1900. In 1915, miners began excavating the Kentucky-Utah Mine and continued to dig intermittently until 1948. The Kentucky-Utah Mine lies entirely within the Big Cottonwood Drainage Area. Owners excavated the Kentucky-Utah Mine to extract minerals and drain water encountered in other nearby mines, including the Woodlawn Mine.

16 The Kentucky-Utah Mine intercepts underground percolating water through seepages and cracks in its tunnel walls. This water is collected approximately 1,000 feet inside the tunnel and diverted to its portal. The portal of the mine is located approximately one-quarter to one-half mile south of, and approximately 500 vertical feet above, Big Cottonwood Creek. The portal is also within several hundred feet of the Silver Fork area and approximately 12 miles from the mouth of the canyon.

1 7 Evidence at trial indicated the mine did not collect a substantial amount of underground water until well into its excavation, likely after 1980. It is not evident when, during its nearly thirty-year excavation, the mine produced the nearly .5 cfs. of water claimed by both Salt Lake and SFPC. Nor does the record disclose how much water collected in the mine, if any, originates from other mines such as the Woodlawn.

III. ORIGIN OF THE SILVER FORK PIPELINE CORPORATION AND ITS USE OF WATER FROM THE KENTUCKY-UTAH MINE

18 As grazing, timber, and mining in the canyon waned, Silver Fork eventually became a community for summer and year-round residents unrelated to any of these industries. As early as 1985, these residents permissively used water on demand emanating from the mine. In June 1985, Jesse Hulse and Ernest Nielson obtained title to approximately eighty acres of land in the Silver Fork area, northwest of the portal of the Kentucky-Utah Mine. They subsequently developed and sold this property to other persons for building summer homes and cabins.

T9 Initially, Hulse and Nielson obtained water for their cabins by dipping it from a nearby creek, likely either Big Cottonwood Creek or Silver Fork Creek. In 1940, Hulse obtained authorization from the U.S. Forest Service to construct a ditch across approximately 400 feet of Forest Service land from the portal of the Kentucky-Utah Mine to his cabin. Hulse then obtained permission from owners of the mine to use their water and began digging the ditch. Beginning in 1941, all water emanating from the mine, except during winter months, was diverted through the ditch to Silver Fork.

{10 In August 1945, Hulse and Neilson entered a contract with Salt Lake entitled "Application for Water" in which Hulse and Nielson agreed to construct and maintain the ditches through which they diverted water from the mine. Salt Lake agreed to sell water flowing in the ditch in exchange for $2 per cabin each year. Hulse and Neilson also agreed to replace the ditch with a pipeline and to return water not used for domestic and culinary purposes to the creek.

111 In 1950, Hulse formed the Silver Fork Pipeline Corporation, a non-profit corporation organized to construct, operate, and maintain the diversion works extending from within the mine to the subdivision on the former Hulse-Nielson property. Shares in the corporation are owned by individuals who own property in the Silver Fork area. In that same year, SFPC contracted to pay Salt Lake $5 every year for each cabin located in the Silver Fork area which used water from the mine. By its terms, this agreement superseded the contract between Salt Lake and Hulse and Nielson.

{ 12 In 1963, Salt Lake and SFPC amended this agreement in order to increase the water usage rate to $15 per year for each cabin. -In 1965, Jesse Hulse relinquished all right, title, and claim in his improvements to the watercourse he constructed across Forest Service land to SFPC and canceled the permit issued to him in 1940. The Forest Service subsequently issued SFPC a permit authorizing the maintenance and use of the same watercourse between the mine and the Silver Fork area.

IV. EVENTS PRECIPITATING THE PRESENT DISPUTE

13 In the spring of 1991, the state engineer sent a letter to SFPC indicating that if it could not provide evidence of a right to the water it diverted from the mine, legal action would ensue to prevent Silver Fork residents from diverting the water. On April 1, 1991, SFPC filed an underground water claim, or "diligence claim," and a change application claiming that it owned title to the right to use approximately .5 e.f.s. of water intercepted in the mine.

¶14 On December 10, 1991, and June 22, 1992, Salt Lake filed with the engineer an "Application for Temporary Change of Water," and an "Application for Permanent Change of Water," respectively. These applications requested permission to change its point of diversion from one of its ditches near the mouth of the canyon to the portal of the mine. The engineer stayed any action on both SFPC's claim and Salt Lake's applications pending resolution of this dispute.

115 Since 1991, SFPC has continued to pay Salt Lake for the water it diverted from the mine pursuant to its agreement. Since that time, however, SFPC has paid Salt Lake "under protest," claiming that it is the rightful owner of waters emanating from the mine.

V. PROCEEDINGS BEFORE THE TRIAL COURT

116 Salt Lake filed suit against SFPC in district court seeking to quiet title in itself to all water intercepted in the mine. Salt Lake claimed title to this water as part of its appropriation of virtually all rights to water flowing in Big Cottonwood Creek adjudicated in the Morse Decree. SFPC claimed title to use waters intercepted in the mine by virtue of its 1991 diligence claim and by adverse possession. SFPC also filed a countersuit seeking reimbursement of all money it had paid under its purchase agreements with Salt Lake for use of water from the mine.

(17 After a bench trial, the court quieted title in Salt Lake to all water intercepted in the mine based on several findings: (1) Salt Lake holds rights to use nearly all water flowing in the creek at the mouth of Big Cottonwood Canyon, (2) water intercepted in the mine was naturally tributary to the creek above Salt Lake's points of diversion, and (3) interception of this water by SFPC substantially interferes with Salt Lake's water rights at the mouth of the canyon. With respect to the other claims, the court concluded that the evidence did not support SFPC's diligence claim, and that SFPC failed to prove the elements of adverse possession. Having quieted title in Salt Lake, the court then dismissed with prejudice SFPC's claim for reimbursement of money it paid to purchase the water.

118 A quiet title action requires the application of a rule of law to decide ownership of the property in question. See Oates v. Chaves, 749 P.2d 658, 659 (Utah 1988). The validity of adverse possession, see Olwell v. Clark, 658 P.2d 585, 586 (Utah 1982), and diligence claims also requires the application of rules of law. We review the trial court's conclusions of law for correctness. See Provo River Water Users' Ass'n v. Morgan, 857 P.2d 927, 931 (Utah 1993). We review the trial court's findings of fact under a clearly erroneous standard, resolving any ambiguity in the evidence in favor of the trial court's judgment. See Oates, 749 P.2d at 659.

T19 SFPC's various arguments on appeal fall into two main categories. First, SFPC challenges the validity of Salt Lake's alleged title to the water intercepted at the mine. Second, it attempts to establish its own title to the intercepted water.

120 In Utah, title to water rights is adjudicated in the same fashion as title to real property. See Church v. Meadow Springs Ranch Corp., 659 P.2d 1045, 1048 (Utah 1983). To succeed in an action to quiet title to water rights, "a plaintiff must prevail on the strength of his own claim to title and not on the weakness of a defendant's title or even its total lack of title." Id. at 1048-49 (citations omitted). Under our current Water Code, certificates of appropriation issued by the state engineer, applications filed with the state engineer, court decrees, or other notices of claims filed pursuant to law are evidence of title to water rights. See Utah Code Ann. § 73-5-13 (Supp.1999).

VI. SALT LAKES TITLE TO WATER INTERCEPTED IN THE KENTUCKY-UTAH MINE

21 SFPC argues that Salt Lake failed to prove, by way of decreed right, certificate of appropriation, or diligence or use claim, its alleged right to divert water at the mine. SFPC concedes the Morse Decree provided Salt Lake title to use of water flowing in the creek near the mouth of the canyon. However, according to SFPC, because the Morse Decree issued in 1914, and percolating water was not subject to appropriation in Utah prior to 1985, the Morse Decree could not provide Salt Lake with rights to the underground source waters of the creek. Accordingly, Salt Lake's water rights are limited to specific points of diversion at the mouth of the canyon, as set forth in the Morse Decree. SFPC further argues that Salt Lake's failure to file a change application with the state engineer seeking permission to change its point of diversion from the mouth of the canyon to the portal of the mine precludes Salt Lake from relying on the Decree to claim title to water intercepted in the mine. Salt Lake counters that the Morse Decree grants it title to water intercepted in the mine, because this water is naturally tributary to the creek. In addition, even prior to 19835, Utah law allowed owners of surface water rights to enforce their rights against anyone who interfered with the source of those waters, including percolating water.

122 Salt Lake correctly asserts that a right to water includes an interest in the source(s) of those waters. See Little Cottonwood Water Co. v. Sandy City, 123 Utah 242, 249-50, 258 P.2d 440, 443 (1953). Thus, Salt Lake possesses an interest in the source waters to Big Cottonwood Creek. The question is whether the mine waters are, in fact, a source of the creek.

A. Water Intercepted in the Mine Is Naturally Tributary to Big Cottonwood Creek

123 To be considered source waters, the percolating waters in question must be naturally tributary to the creek above Salt Lake's historic point of diversion. See, e.g., Mountain Lake Mining Co. v. Midway Irr. Co., 47 Utah 346, 149 P. 929 (1915).

124 In the instant case, the district court found that water intercepted in the mine, "ultimately, in the absence of the Kentucky-Utah Mine Tunnel would have contributed to Big Cottonwood Creek above the mouth of Big Cottonwood Canyon," before, during, and after the 1914 Morse Decree. This finding is supported by substantial evidence. Salt Lake presented testimony of four experts who testified that water intercepted in the mine would ordinarily and naturally flow into the creek absent interception at the mine. These experts based this conclusion on geological characteristics of the canyon generally, and on the area surrounding the mine specifically; on chemical testing of water intercepted in the mine compared with water drawn from other areas in the canyon, including the creek; and on tests that determined the age of water flowing above and below ground throughout the canyon, particularly water intercepted in the mine and flowing in the creek. In light of all the credible evidence, the trial court did not err in finding that the mine water is tributary to Big Cottonwood Creek.

B. Interception of Water from the Mine Substantially Interferes with Salt Lake's Title to Use of Water in the Creek

125 Quieting title to source waters requires not only a finding that these waters are naturally tributary to an appropriated creck, but also that interception of these waters substantially interferes with the quantity or quality of water that would otherwise reach the appropriator of the creek. See Little Cottonwood Water Co. v. Sandy City, 123 Utah 242, 250, 258 P.2d 440, 444 (1953); Wrathall v. Johnson, 86 Utah 50, 74, 40 P.2d 755, 766 (1935).

126 The district court found that interception of nearly .5 ef.s. of water from the mine "impacts and interferes with the water rights of Salt Lake City at the mouth of Big Cottonwood Canyon," and that such interference is "substantial." This finding is supported by substantial evidence. The trial court noted that .5 ef.s. of water continuously flowing from the mine would yield approximately 862 acre-feet of water each year, enough to support 362 families of four for an entire year. Assuming that virtually all water intercepted in the mine would naturally flow into the creek but for the presence of the mine, the court determined that interception of these waters created a substantial interference with Salt Lake's right to flow of water in the creek. We agree that diminution of the creek by nearly .5 cf.s. is substantial. >

127 SFPC argues that the district court erred in finding substantial interference without requiring Salt Lake to proffer actual measurements of water flowing in the creek at the mouth of the canyon, illustrating that diversion of water at the mine significantly diminished the flow in the creek. We disagree that a court must premise its finding of substantial interference on actual measurements reporting flow before and after interception of the water at its source. Measurements of water flow are often not available to prove interference, and when they are, their value is limited to the extent that other environmental factors dictate flow, such as season and amount of precipitation. It is especially difficult to demonstrate by empirical evidence the extent to which interception of percolating water interferes with a surface body of water to which it is tributary. Hydrogeological characteristics in a particular area may extend to decades the time it takes for underground water to percolate through the soil before reaching the surface, only then making the effect of interception evident based on diminished water levels.

128 Given the difficulty in obtaining reliable measurements of water flow that accurately reflect the effects of interception of underground source waters, we cannot agree that a finding of interference must be premised on this type of evidence. If nearly .5 cf.s. of water intercepted in the mine would naturally flow into the creek but for the existence of the mine, it is reasonable to infer that Salt Lake has suffered, or will eventually suffer, a diminution in its water right of approximately 362 acre-feet of water each year. This evidence is sufficient to support the trial court's finding of substantial interference.

C. Percolating Waters Jurisprudence Does Not Preclude Salt Lake's Title to Mine Water - |

129 SFPC next argues that it is irrelevant whether underground water intercepted in the mine is naturally tributary to Big Cottonwood Creek, because, in 1914, when rights to the creek were adjudicated in the Morse Decree, underground water in Utah was not public and could not be appropriated. The Morse Decree could not, therefore, provide any rights to percolating waters intercepted in the mine. . In support of its argument, SFPC relies on textual changes to Utah's Water Code in 1985. In 1914, Utah Code Ann. § 100-1-1 read: "The water of all streams and other sources in this state, whether flowing above or under the ground, in known or defined chanmels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof." Comp. Laws of Utah § 40-3-1288x18 (1907) {(emphasis added). The Legislature amended this provision in 1985 to read as follows: "All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof." 1935 Utah Laws ch. 105, § 100-1-1 (presently codified at Utah Code Ann. § 78-1-1). According to SFPC, the 1985 omission of the phrase "in known or defined channels" indicates that percolating water, which by definition does not flow in a known or defined channel, was not public property in 1914 and, therefore, not subject to appropriation.

130 SFPC also relies on Provo River Water Users' Ass'n v. Morgan, 857 P.2d 927, 932-33 (Utah 1993), to support its argument that percolating waters were not subject to appropriation prior to 1985. In Provo River, this Court interpreted the seope of the Weber River Decree, a general adjudication lasting between 1921 and 1987, to ascertain whether the decree was intended to adjudicate all waters, including percolating waters, in the Weber River drainage area. This would have foreclosed subsequent appropriation of any water with a hydrological connection to the river. We concluded the Weber River Decree adjudicated only water rights to the Weber River and its surface tributaries, rather than rights to all isolated springs and percolating water. See id. at 982. We based our determination in part on the fact that during the first fourteen years of the Weber River proceedings, from 1921 through 1985, Utah law did not require users of percolating waters to assert their rights in a general adjudication. However, we did not hold that any adjudication of water rights commencing prior to 1985 could not, as a matter of law, resolve rights to percolating waters.

%31 As part of our Provo River analysis, we provided an historical overview of this Court's early treatment of percolating waters. Although we initially treated percolating waters as subject to the absolute control of the property owner, our view changed in conjunction with a greater understanding of the way underground water systems work in this mountainous and arid state. As we have since indicated, the public has always owned percolating waters in spite of statements to the contrary in earlier cases. In Provo River, we rejected the characterization of percolating water as "privately owned." See id. at 933 n. 8. We acknowledged that some pre-1985 decisions "characterized diffused groundwater and isolated springs and seeps as subject to private ownership," id. However, we expressly agreed with the statement by Chief Justice Wolfe, made in 1952, that public ownership of all water in the state, even that which percolates underground,

"must have always been so. ... But the fact that the State progressively applied regulation to the acquisition of use rights in water does not disturb the fundamental principle that all water ... at least from the time it reaches land within the confines of this state belongs to the public-the people of this state."

Id. (quoting McNaughton v. Eaton, 121 Utah 394, 405, 242 P.2d 570, 575 (1952) (Wolfe, C.J., concurring)).

132 SFPC's reliance on the 1985 textual changes to the Water Code is likewise misplaced. For even prior to 1935, percolating water was subject to appropriation by private individuals who diverted and beneficially used such water. See Dalton v. Wadley, 11 Utah 2d 84, 355 P.2d 69 (1960); Fairfield Irr. Co. v. Carson, 122 Utah 225, 247 P.2d 1004 (1952); Hanson v. Salt Lake City, 115 Utah 404, 205 P.2d 255 (1949). The 1985 Utah law simply subjected appropriators of underground waters to the statutory application process of our Water Code. See Riordan, 115 Utah at 224-25, 203 P.2d at 927.

133 SFPC's argument that the Morse Decree could not grant Salt Lake title to percolating water intercepted in the mine because this water was not public property until 1985 mischaracterizes early Utah law and ignores this Court's clear statements that percolating waters have always been public property subject to appropriation. Therefore, Progress could, and in this case did, provide Salt Lake with title to water intercepted in the Kentucky-Utah Mine. When Salt Lake and its predecessors appropriated use of waters in the ereek, they also appropriated percolating source waters of the creek.

D. Water Intercepted in the Mine Is Not Subject to a Semor Appropriation by SFPC

134 SFPC further attacks Salt Lake's title to use of water intercepted in the mine by claiming SFPC appropriated the water before Salt Lake did. Utah is a prior appropriation state, where the appropriator first in time is first in right. See Utah Code Ann. § 78-8-1 (1989). A senior appropriator is guaranteed the full measure of his or her appropriation before any claim by a junior appropriator may be satisfied. See id.; see also Hanson v. Salt Lake City, 115 Utah 404, 205 P.2d 255 (1949). Therefore, even if Salt Lake is otherwise entitled to source water intercepted in the mine, if SFPC or its predecessors in interest lawfully appropriated water from the mine before Salt Lake or its predecessors did, Salt Lake cannot prohibit SFPC's use of the water.

1385 However, we find that SFPC has no valid claim to waters intercepted in the mine predating 1894, the date by which Salt Lake and its predecessors in interest appropriated use of almost all the water flowing in the creek near the mouth of the canyon. First, even if Salt Lake and its predecessors did not fully appropriate the water in the creek until 1914, the year the Morse Decree issued, SFPC would have no interest that predates Salt Lake's. Excavation of the mine did not commence until 1915, the earliest time from which predecessors of SFPC could have beneficially used the .5 cfs. of water intercepted in the mine. In fact, evidence indicates that the mine did not produce a significant amount of water until after 19830. Second, as discussed more fully below regarding SFPC's diligence claim, even if we assume that it was possible to obtain rights to the .5 ef.s. of water intercepted at the mine before the mine was built, SFPC has failed to establish that it has a legitimate claim to that water. For one, SFPC failed to establish a chain of title between itself and early Silver Fork residents See infra, TT 42-45. Furthermore, SFPC failed to demonstrate that early Silver Fork residents beneficially used (Le., appropriated) .5 ef.s. of water flowing in the area. See infra, note 19. Therefore, SFPC has no interest in the mine waters senior to Salt Lake's title.

E. Salt Lake's Foilure to File a Change Application Does Not Preclude Its Title to Mine Waters

136 SFPC notes that although Salt Lake sold water intercepted in the mine to SFPC or its predecessor from 1945 until the present, Salt Lake did not file an application with the state engineer seeking approval for change in its point of diversion, from the mouth of the canyon to the mine, until December 10, 1991. SFPC argues that because Salt Lake failed to obtain permission to divert water at the mine until 1991, it had no right to these waters, and by selling this water Salt Lake has illegally enlarged its rights in the creek. On this point, the trial court held that "[aluy failure of Salt Lake City to obtain an approved change application is irrelevant to the instant action and any such failure did not result in a forfeiture of any of Salt Lake City's water rights." We agree.

137 Salt Lake's failure to file a change application does not affect its title to use water intercepted in the mine, in spite of the Water Code's prohibition against changing a point of diversion without an approved application to do so. Utah Code Ann. $ 73-38-83 allows parties to change the place of diversion, but requires that such changes "be made in the manner provided in this section." Id. § 73-3-3(2) & (8). The statute expressly prohibits a change in point of diversion before a change application is approved by the state engineer. See id. § 78-8-8(4). Although, as we stated in Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 104 Utah 216, 217, 140 P.2d 638, 639 (1943), section 73-83-83 "provides its own enforcement clause and nowhere in the statutes does it appear that ... a change in the place of the diversion ... shall constitute a forfeiture of the water" to which a party is otherwise entitled. The enforcement provision of seetion 78-38-38 reads:

(9) Any person who changes or who attempts to change a point of diversion, place, or purpose of use, either permanently or temporarily, without first applying to the state engineer in the manner provided in this section:
(a) obtains no right; and
(b) is guilty of a misdemeanor, each day of the unlawful change constituting a separate offense, separately punishable.

Utah Code Ann. § 78-3-8(9) (1989). Salt Lake's failure to file a change application could not alone deprive it of its rights to waters intercepted in the mine.

138 Aside from Utah's Water Code, nothing precludes Salt Lake from changing its point of diversion except the general rule that it may not do so to the injury of any downstream appropriator who is a party to the dispute. See, e.g., East Bench Irr. Co. v. Deseret Irr. Co., 2 Utah 2d 170, 177, 271 P.2d 449, 454 (1954). As discussed more fully below, SFPC, the only other party in this dispute, owns no interest in the waters intercepted in the mine apart from its purchase agreement with Salt Lake. Therefore, no party to this dispute can claim injury as a result of Salt Lake's diversion of water at the mine. Salt Lake's failure to file a change application with the state engineer has no bearing on its claim to the water intercepted in the mine.

VII. SILVER FORKS TITLE TO WATER INTERCEPTED IN THE KENTUCKY-UTAH MINE

139 SFPC claims title to approximately .5 cf.s. of percolating water intercepted inside the mine based on two theories. First, SFPC asserts, by way of a diligence claim, that it is successor-in-interest to early Silver Fork residents, and the owners and employees of the Kentucky-Utah and Woodlawn Mines, who diverted and beneficially used this water prior to 1985. Second, SFPC claims it acquired title to water intercepted in the mine by adverse possession.

140 The trial court found that SFPC's 1991 diligence claim "is unsupported by the evidence." The court also concluded SFPC "failed to establish any of the elements of adverse possession." Ultimately, the court held that SFPC has "no right to the use of waters emanating from the mine tunnel, separate and distinet from [its] interest under the contracts with Salt Lake."

A. SFPC's Diligence Claim to Water Intercepted in the Mine

141 Currently, diligence claims to percolating water appropriated prior to 1935 are filed under Utah Code Ann. § 78-3-17. Filing a claim under this provision constitutes prima facie evidence of the validity of that claim. See Robert W. Swenson, A Primer of Utah Water Law: Part II, 6 J. Energy L. & Pol'y 1, 28 (1985). However, diligence rights are expressly limited "to the amount of water actually beneficially used prior to the effective date of the 1985 act." Id. at 24 (citing In re General Determination of Water Rights in the Escalante Valley Drainage Area, 6 Utah 2d 1, 4, 304 P.2d 964, 965-66 (1956)).

142 SFPC cannot claim it sue-ceeded to the diligence rights of early Silver Fork residents because it failed to prove that the land owned by early residents who allegedly obtained diligence rights to mine waters is now owned by shareholders of SFPC, rather than other parties unrelated to SFPC. Generally, water rights are appurtenant to land on which the water is beneficially used. See Utah Code Ann. §§ 78-1-10 to -11 (1989). They are "transferred by deed in substantially the same manner as real estate," and pass automatically to a grantee of the land unless expressly reserved. See id. Silver Fork's title to waters intercepted in the mine necessarily depends on whether early Silver Fork residents acquired dili-genee rights to these waters before 1935 and then transferred their rights to current SFPC shareholders, or to intervening parties who thereafter transferred these rights to current shareholders. However, SFPC has presented no evidence demonstrating the succession of title between early Silver Fork residents, who may in fact have obtained diligence rights to water from the mine, and current SFPC shareholders. The only connection SFPC has shown between its shareholders and early Silver Fork residents is that they have all lived in the same general vicinity of the canyon. That connection does not suffice to establish a succession of title to property or water rights.

48 SFPC also fails to explain how it could be successor-in-interest to any company owning and operating either the Kentucky-Utah or the Woodlawn Mine. Neither SFPC nor its predecessor-in-interest, Jesse Hulse, has owned an interest in the companies operating the Kentucky-Utah and Woodlawn Mines, nor have they ever owned land through which these mines were excavated. In support of its claim, SFPC submitted an affidavit of Dilworth Nebeker, Ir., a former owner of the mine, who stated that owners of the mine granted permission to use mine water "on demand and to the full extent required for mining and domestic purposes by the people in the area prior to 1985." Thereafter, verbal and written permission was granted to Jesse Hulse and SFPC to use water from the mine. SFPC also proffered a 1950 document in which owners of the mine granted SFPC permission to bury pipe and construct a small cement reservoir on mine property in order to store water from the mine for use by Silver Fork residents. However, this document did not purport to transfer to SFPC any interest in the water itself. We fail to see how permission to use water intercepted in the mine could transfer any interest in that water, even assuming the mining company owned any interest in this water to transfer.

144 At most, SFPC is successor-in-interest to Jesse Hulse. Hulse organized SFPC in 1950 as a non-profit corporation for the purpose of maintaining Silver Fork's water supply from the Kentucky-Utah Mine. However, any rights to water intercepted in the mine that Hulse may have obtained accrued after 1985 and cannot serve as the basis of a diligence claim. See Hanson, 115 Utah at 415, 205 P.2d at 260. There is no reliable evidence that Hulse or others who built cabins on the Hulse-Nielson development beneficially used water from the mine prior to 1940. In 1940, Hulse obtained authorization to excavate a ditch across U.S. Forest Service land. Only after completing the ditch in the early 1940s did Hulse begin using water from the mine. Before 1940, Hulse and other cabin owners dipped water from the nearby stream.

145 Given the lack of evidence regarding chain of title, the trial court correctly rejected SFPC's diligence claim.

B. SFPC's Claim to Mine Waters by Adverse Use

146 Finally, SFPC claims title to the mine water through adverse possession.

The elements of proof necessary to acquire a prescriptive right to water are seven years of continuous, uninterrupted, hostile, notorious, and adverse enjoyment under a claim of title with knowledge and acquiescence of the owner of the prior right and at a time when the owner of the right needed the water adversely claimed.

College Irr. v. Logan River & Blacksmith Fork Irr. Co., 780 P.2d 1241, 1243 (Utah 1989). The presumption is against the acquisition of a right by adverse use, and the burden of proof is upon the party asserting the right. See id. Under the doctrine of "tacking," adverse possession may be completed by a series of possessors in privity. See, e.g., Royal Street Land Co. v. Reed, 739 P.2d 1104, 1106 (Utah 1987); Home Owners' Loan Corp. v. Dudley, 105 Utah 208, 225, 141 P.2d 160, 168 (1943).

147 The trial court properly rejected SFPC's adverse possession claim. Specifically, SFPC failed to prove seven years of continuous, uninterrupted, hostile, notorious, and adverse enjoyment under claim of title, beginning prior to 1939, by any party it may legitimately claim as its predecessor-in-interest. As stated above, Jesse Hulse is the only party SFPC may reasonably claim as its predecessor-in-interest. There is no reliable evidence that Hulse's predecessors made continuous, uninterrupted, hostile, notorious, and adverse use of mine water prior to 1939. In fact, as discussed at length above, SFPC's allegations that a substantial number of Silver Fork residents prior to Hulse beneficially used .446 cf.s. of water from the mine is extremely speculative. This falls far short of the proof required to support an adverse possession claim in light of the presumption against these claims. Because Silver Fork cannot establish that its predecessors adversely used water from the Kentucky-Utah Mine prior to 1989, the trial court correctly rejected SFPC's adverse possession claim.

T48 Because we affirm the trial court's determination to quiet title to waters intercepted in the Kentucky-Utah Mine in Salt Lake, and its rejection of SFPC's diligence and adverse possession claims, we do not consider SFPC's counterclaim seeking reimbursements of amounts it has paid to Salt Lake to purchase water from the mine.

11 49 Affirmed.

¶50 Chief Justice HOWE, Associate Chief Justice DURHAM, Justice ZIMMERMAN, and Justice RUSSON concur in Justice STEWART's opinion.

      . The Morse Decree provided Salt Lake with water rights in the Big Cottonwood Drainage Area in addition to those listed herein; however, these rights have no application in this case.

      . Under category 1, the Morse Decree awarded water rights during the irrigation season, April 1 through October 1, when the flow of the creek at a particular intake is between 0 and 120 cfs. Under category 2, the Morse Decree awarded rights during the irrigation season when the flow of the creek is between 120 and 351.5 cfs. Under category 3, the Morse Decree awarded water rights during the non-irrigation season, October 1 through April 1, according to whether the flow of the creek is below or above 50 c.f.s.
      The Morse Decree awarded Salt Lake the following shares in the creek: under category 1, about 25 shares, or 41% of all water flowing in the creek; under category 2, about 23 shares, or 38% of the creek; and under category 3, about 16% shares, or 27%, plus an additional 48.8 c.f.s. when the creek exceeds 50 c.f.s.

      . Salt Lake's rights under category 1 totaled 59 4 shares, or 98.72%. Its rights under category 2 totaled 54% shares, or 90.42%. Its rights under category 3 totaled just under 60 shares, or 99.23%, plus 48.8 c.f.s. when the flow exceeds 50 c.s.

      . At the time of trial, shares of Silver Fork Pipeline Corporation belonged to approximately 260 owners of cabin lots in the Silver Fork area, on which its residents had constructed 196 cabins.

      . During the time period relevant to this dispute, this Court defined percolating water as "diffused groundwater (groundwater not flowing in known or defined channels) and seeps and artesian springs that did not flow off the property owner's land." Provo River Water Users' Ass'n v. Morgan, 857 P.2d 927, 932 (Utah 1993) (citing Riordan v. Westwood, 115 Utah 215, 220-21, 203 P.2d 922, 925 (1949); Robert W. Swenson, A Primer of Utah Water Law: Part II, 6 J. Energy L. & Pol'y 1, 21-22 n.87 (1985)).
      Neither party claims the mine intercepts underground water that flows in defined underground streams or channels, rather than by percolation. For purposes of consistency, we will refer to the underground water at issue as percolating water, as we have in prior cases. See Provo River, 857 P.2d at 932.

      . We have consistently held that an appropriator of water rights also owns a vested interest in the sources of that water, and no one may interfere with the source of the appropriator's water supply in a way that diminishes the quantity or quality of the appropriated water, See Little Cottonwood Water Co. v. Sandy City, 123 Utah 242, 249-50, 258 P.2d 440, 443 (1953). This principle holds true regardless of how far the source may be from the place of use, and regardless of whether the source waters flow on the surface or underground. See id.; Peterson v. Wood, 71 Utah 77, 262 P. 828 (1927); Rasmussen v. Moroni Irr. Co., 56 Utah 140, 153, 189 P. 572, 578 (1920); see, e.g., College Irr. Co. v. Logan River & Blacksmith Fork Irr. Co., 780 P.2d 1241, 1244 (Utah 1989); Richlands Irr. Co. v. Westview Irr. Co., 96 Utah 403, 418, 80 P.2d 458, 465 (1938). In Stubbs v. Ercanbrack, 13 Utah 2d 45, 49-50, 368 P.2d 461, 463 (1962), we reasoned that "if the owners of water rights can be deprived of them by someone digging into and usurping this water at its source, then water rights become tenuous indeed, if not quite meaningless."

      . In Mountain Lake Mining Co., all members of the Court agreed that underground waters intercepted in a mine that were naturally tributary to a nearby creek belonged entirely to the appropriators of that creek, see id. at 360, 149 P. at 934; id. at 368, 149 P. at 936-37 (Frick, J., concurring); id. at 369, 149 P. at 937-38 (Straup, C.J., dissenting), although the justices disagreed with respect to issues of proof. See id. at 360-61, 149 P. at 934-35; id. at 367, 149 P. at 936-37 (Frick, J., concurring); id. at 369, 149 P. at 937-38 (Straup, C.J., dissenting). Not unlike the present case, Mountain Lake was a quiet title action between a mining company that had intercepted approximately 8 cfs. of underground water while excavating its tunnel, and an irrigation company that had fully appropriated use of water flowing in a nearby creek. The mining company sought to quiet title in itself to most of the water intercepted in its tunnel, claiming this water was "developed water." See id. at 347, 149 P. at 929. The irrigation company claimed that the water intercepted in the tunnel was naturally tributary to its creek and that it therefore owned all of the water by virtue of its appropriation of the creek before excavation of the mine. See id. at 348, 149 P. at 929. This Court quieted title to all water intercepted in the mine in the irrigation company, based on the presumption that water intercepted in a tunnel excavated in a watershed that is drained by a nearby stream is tributary to that stream absent proof that this water is developed water. See id. at 367, 149 P. at 934; id. at 368, 149 P. at 936-37 (Frick, J., concurring).

      . Dr. William Parry, a professor of geology and geophysics at the University of Utah for 30 years and an expert on Wasatch Front geology, conducted a detailed study of Big Cottonwood Canyon topography and geology. He testified that underground water in the canyon is "shallow and active," and that "water that now flows from the [mine] would have, in the absence of the tunnel, discharged into Big Cottonwood Creek and flowed down Big Cottonwood Creek." According to Dr. Parry, in the upper reaches of the canyon above the mine, water flows downward through relatively permeable Mississippian limestone rock formations, and is eventually forced to surface in the creek at or above Argenta, an area above the mouth of the canyon. From this point, the creek flows over impermeable consolidated bedrock which forms a groundwater flow barrier forcing water to remain in the creek until it reaches the mouth of the canyon. Dr. Parry testified that it is improbable that water continues to flow underground beyond Argenta because of the impermeable nature of quartzite and shale formations underlying the canyon in that area. Nor is there a tendency for water intercepted in the mine to flow outside the Big Cottonwood Drainage Area into other drainages. Dr. Parry also testified that chemical tests of surface and underground water in the canyon support his conclusions regarding groundwater flow based on geological and hydrological characteristics of the canyon.
      Dr. Craig Forster, an associate professor at the University of Utah who had specialized in hydro-geology for 25 years and who assisted Dr. Parry's research of the canyon, testified that about 20% of rain and snowfall landing on a surface area approximately one square mile directly above the mine replenishes water intercepted in the mine. Dr. Forster concluded that, absent the mine, water now intercepted in the mine would "flow into the Creek and is tributary" to the creek. He testified that water from the recharge area above the Kentucky-Utah Mine flows underground in the direction of the creek, enters the sediment underlying the creek, then emerges in the flow of the creek one to two miles downstream. Dr. Forster based his conclusions on analysis of the geologic fault zones intersecting the canyon, the permeability and hydrologic conductivity of rocks, and the fact that the mine intersects a boundary between igneous rocks and more permeable sedimentary rocks, where water would likely accumulate, as well as other factors. A report written by Drs. Parry and Forster concludes by stating:
      In the absence of the Kentucky-Utah tunnel, the water that infiltrates the ground in the high ridges above would have discharged at the surface into Big Cottonwood Canyon Creek. Construction of the tunnel has clearly intercepted ground water that would normally have appeared as springs and seeps along Big Col-tonwood Creek and become a part of the base flow of the creek.
      Testimony by two additional experts, Drs. Solomon and James, further supported the conclusions of Drs. Parry and Forster. Reports and testimony presented by Salt Lake's experts provide substantial evidence to support the district court's finding that percolating water intercepted in the mine is naturally tributary to the creek.

      . Allowing appropriation of source waters, where doing so does not interfere with a prior appropriator's quality or quantity of water, corresponds with the public policy of this arid region. It recognizes the need for insuring the highest possible development and most continuous beneficial use of all available water with as little waste as possible. See, e.g., Wayman v. Murray City Corp., 23 Utah 2d 97, 104, 458 P.2d 861, 865 (1969) (Crockett, C.J., with 4 judges concurring in the result) (relying on public policy to argue applicability of "rule of reasonableness"). Requiring a finding of substantial interference of a prior appropriator's water rights, evidenced by material diminution in quantity or quality of water previously appropriated, serves to protect water rights and promote beneficial use of a valuable natural resource.

      . Generally, the inquiry regarding interference focuses on actual interference in the quantity or quality of the water to which the prior appropriator is entitled. It is possible that SFPC currently uses less than the nearly .5 cfs. of water it claims, and that it returns the unused water to the creek in compliance with the terms of its contract with Salt Lake. Based on the diligence claim filed with the state engineer, SFPC is claiming actual, beneficial use of nearly .5 cA.s. of water. We do not express an opinion on whether a claim to a lesser amount, or evidence that less water is beneficially used in fact, would preclude a finding of interference with Salt Lake's rights to water at the mouth of the canyon.

      . "Our cases prior to 1921 uniformly viewed percolating waters as subject to the property owner's absolute control." Provo River, 857 P.2d at 932 (citing Riordan, 115 Utah at 219, 203 P.2d at 924). However, after 1921 "the absolute control exercised over [percolating water] by landowner-users was gradually whittled away by a series of opinions from this court." Id. Finally, in 1935, we "virtually abandoned the distinction between percolating waters and other waters by holding that the use of isolated springs [a type of percolating water] is governed by the appropriation statute." Id. at 932-33 (citing Riordan, 115 Utah at 224, 203 P.2d at 927; Justesen v. Olsen, 86 Utah 158, 40 P.2d 802 (1935); Wrathall v. Johnson, 86 Utah 50, 40 P.2d 755 (1935)). In that same year, the Legislature "ratified our view," Provo River, 857 P.2d at 933 (citing 1935 Utah Laws ch. 105, § 100-1-1), as we suggested it should in Justesen and Wrathall, by amending Utah's Water Code to "recognize that all waters of the state, whether above or below the surface, are subject to the statutory appropriation and adjudication processes." Id. (citing 1935 Utah Laws ch. 105, § 100-1-1 (now codified at Utah Code Ann. § 73-1-1)}.

      . Similarly, in Riordan two members of this Court stated that public ownership of all underground and surface waters "has probably always been the law of this state," regardless of the 1935 amendment to Utah's Water Code. See Riordan, 115 Utah at 224, 203 P.2d at 927.

      . According to Justice Wolfe, when the Legislature amended the Water Code in 1935, declaring all waters "to be property of the public," it merely recognized a fact that had always been so. See McNaughton, 121 Utah at 405, 242 P.2d at 575. Justice Wolfe earlier made the following observation in his concurring and dissenting opinion in Riordan:
      The legislature did not by a declaration [in 1935], make public what were previously nonpublic waters. It simply extended to all public waters the necessity of application to the state engineer in order to appropriate, and made such appropriation subject to all existing rights.... [Underground waters] were always public until appropriated by diligence or by application, when the latter was made the necessary method of appropriation.
      Riordan, 115 Utah at 235, 203 P.2d at 932 (Wolfe, J., concurring and dissenting).

      . Even if we were to agree that prior to 1935 percolating water was not public property but belonged to the owner of the soil through which it passed, Salt Lake and its predecessors still obtained title to water intercepted in the Kentucky-Utah Mine under a "well established" exception to this rule.
      We have ... repeatedly held that the appropriators of the waters of natural streams acquired a vested interest in the source of the waters of such streams which was percolating through the soil of the lands which belonged to the public domain at the time when the appropriation was first made.
      Riordan, 115 Utah at 220, 203 P.2d at 925 (citing Peterson v. Wood, 71 Utah 77, 262 P. 828 (1928); Peterson v. Lund, 57 Utah 162, 193 P. 1087 (1920); Rasmussen v. Moroni Irr. Co., 56 Utah 140, 189 P. 572 (1920); Cole v. Richards Irr. Co., 27 Utah 205, 75 P. 376 (1904)).
      Under this exception, Salt Lake and its predecessors appropriated title to water intercepted in the mine by virtue of the Morse Decree because they fully appropriated water flowing in the creek several years before land through which the Kentucky-Utah Mine extends was segregated from the public domain. Silver Fork argues that the Kentucky-Utazh Mine was started in 1898. We cannot locate evidence that indicates when the mine was actually patented. In any event, 1898 is the first year in which property through which the mine was excavated can be considered "private." On the other hand, Salt Lake and its predecessors fully appropriated Big Cottonwood Creek between 1848 and 1894. Under the exception, in 1894 underground water later intercepted in the mine was public and subject to appropriation, and was appropriated, by Salt Lake and its predecessors. See Peterson, 71 Utah at 86, 262 P. at 832; Peterson, 57 Utah at 169-70, 193 P. at 1087-90; Rasmussen, 56 Utah at 153, 189 P. at 576; Stookey v. Green, 53 Utah 311, 317-18, 178 P. 586, 588 (1919); Cole, 27 Utah 205, 75 P. 376; Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 P. 244 (1898); Sullivan v. Northern Spy Mining Co., 11 Utah 438, 443-44, 40 P. 709, 710 (1895); see also Snake Creek Mining & Tunnel Co. v. Midway Irr. Co., 260 U.S. 596, 43 S.Ct. 215, 67 L.Ed. 423 (1923).

      . SFPC also claims that Salt Lake is judicially estopped from claiming that the Morse Decree adjudicated percolating waters. According to SFPC, during the Progress adjudication in which this Court affirmed the Morse Decree, Salt Lake successfully argued in its brief to this Court that the district court in Progress had no jurisdiction to adjudicate underground percolating waters. Salt Lake argued that "percolating waters belong to the owners of the land in which they are found. They are not subject to appropriation." See Brief for Respondent (Salt Lake City) at 60-62, Progress Co. v. Salt Lake City, 53 Utah 556, 173 P. 705 (1918) (No. 2851). SFPC contends that Salt Lake may not now argue that Progress adjudicated all percolating waters tributary to Big Cottonwood Creek.
      SFPC's contention is untenable for two reasons. First, SFPC was not a party to Progress that detrimentally changed its position by reason of Salt Lake's inaccurate representation of Utah's water law in Progress. Under judicial estoppel, "[a] person may not, to the prejudice of another person deny any position taken in a prior judicial proceeding between the same persons or their privies involving the same subject-matter, if such prior position was successfully maintained." Salt Lake City v. Silver Fork Pipeline, 913 P.2d 731, 734 (Utah 1996) (Silver Fork I ) (citing Tracy Loan & Trust Co. v. Openshaw Inv. Co., 102 Utah 509, 515, 132 P.2d 388, 390 (1942)).
      Second, it is clear that Salt Lake's earlier statements represented its view of the legal status of percolating water in Utah at the time of that case. Generally, a person who has taken an erroneous position on a question of law is not estopped from later taking the correct position provided the opposing party has suffered no prejudice because of the change in position. See Pittston v. O'Hara, 191 Va. 886, 63 S.E.2d 34, 43 (1951); 28 Am.Jur.2d Estoppel and Waiver § 70, at 700 (1966). As we stated in Silver Fork I, the purpose of judicial estoppel is "to uphold the sanctity of oaths, thereby safeguarding the integrity of the judicial process from conduct such as knowing misrepresentations or fraud on the court." Silver Fork I, 913 P.2d at 734. The purpose behind judicial estoppel is not served in a case such as this, where "there is no evidence that the party against whom judicial estoppel is sought knowingly misrepresented any facts in the prior proceeding." Id.
      In addition, there has been some confusion regarding this Court's treatment of percolating waters during the early part of this century. See Provo River Water Users' Ass'n v. Morgan, 857 P.2d 927, 932-33 (Utah 1993); Snake Creek Mining & Tunnel Co. v. Midway Irr. Co., 260 U.S. 596, 598, 43 S.Ct. 215, 67 L.Ed. 423 (1923). Salt Lake made statements contrary to its cur rent position before this Court decided Progress in 1918. Since that time, this Court has clarified the legal status of percolating waters in Utah. See Provo River, 857 P.2d at 932-33.

      . SFPC also claims that some of its shareholders have succeeded to rights adjudicated in the Morse Decree. SFPC claims these rights are superior to those Salt Lake owns by virtue of the Morse Decree, because the Morse Decree provides that these waters be diverted upstream from Salt Lake's point of diversion. However, individual shareholders of SFPC are not before the Court to litigate their interests under the Morse Decree. We decline to comment on the rights of these individuals relative to the rights of Salt Lake under the Morse Decree.

      . Prior to 1935, Utah's statutory permit system for appropriation of water did not apply to percolating waters. See Swenson, supra, at 23-24. An amendment to Utah's Water Code in 1935 expanded the permit system to regulate the appropriation of percolating waters. See Hanson v. Salt Lake City, 115 Utah 404, 415, 205 P.2d 255, 260 (1949). After 1935, percolating water could not be appropriated without compliance with Utah's statutory appropriation process. See id. However, any person who had beneficially used percolating water before 1935 could simply file a notice of claim to this water (a "diligence claim") with the state engineer and entirely avoid the process of obtaining a permit. See 1935 Utah Laws ch. 105, § 100-5-2. By allowing pre-1935 appropriators of percolating water to bypass the permit procedure, "the legislature recognized that prior thereto the right to use such waters could be acquired by mere appropriation to a beneficial use without complying with the statutory requirements, and thus by implication validated all appropriations of underground waters made ... prior to 1935." Hanson, 115 Utah at 416, 205 P.2d at 260.

      . Even if SFPC could provide proof of succession of title between early SFPC residents who acquired diligence rights to water and current Silver Fork shareholders, it presented no reliable evidence to support its claim that 1,500 people residing or employed in the Silver Fork area prior to 1935 beneficially used nearly .5 cfs. of water from the mine. SFPC's diligence claim necessarily rests on the factual assertion that residents and miners in the Silver Fork area beneficially used 446 cfs. of water from the mine prior to 1935. We agree with the trial court's observation that SFPC's evidence on this point is "inconclusive at best" and "extremely limited."
      Ivy Jean Taylor, a key witness for SFPC testified from personal knowledge that, in 1927, there were cabins in the Silver Fork area; however, Mrs. Taylor could not say how many cabins there were at the time because she did not count them. Mrs. Taylor recalled that a ditch carried water through the Silver Fork area and that she knew of no source for water in the ditch other than the mine. Salt Lake, however, presented evidence that this was the ditch constructed by Jesse Hulse in the early 1940s. Salt Lake also presented topographical and aerial maps showing that Silver Fork was an insubstantial community with about two or three structures just prior to 1935. This evidence was corroborated by Ralph Hulse, who testified that he could remember only a few cabins in Silver Fork in 1935.
      SFPC also relies on an historical publication that indicates Silver Fork had "two stores, one saloon, three blacksmith shops, one livery stable, three sawmills and a hotel" by the late 1870s. However, the author of this publication, Dr. Laurence James, testified that even though a large number of people may have lived in the Silver Fork arca during the latter part of the 1800s, that number significantly diminished well before the turn of the century, and that between 1915 and 1945 probably only 200 people lived in the entire canyon. Dr. James explained that the community in Silver Fork diminished after mining became unprofitable in the late 1800s, and that fire may have destroyed the commercial establishments reported to be in the Silver Fork area.
      There moreover, SFPC provided no support its claim that SFPC residents beneficially used nearly .5 cfs. of water from the mine before 1935, rather than from other nearby sources such as Silver Fork Creek or Big Cottonwood Creek. SFPC provided evidence that approximately .5 cf.s. of water flowed through the ditch transporting water outside the mine, according to measurements taken in 1921. However, this does not establish how much, if any, of this water was beneficially used by people living in Silver Fork. As mentioned above, SFPC presented an affidavit by Dilworth Nebeker, Jr., a former owner of the mine, who stated that mine water "was used on demand and to the full extent required for mining and domestic purposes by the people in the area prior to 1935." However, there is no indication how many people used this water, for what purposes, or in what amount. These facts are crucial to proving whether approximately .5 cf.s. of water was beneficially used.
      Finally, SFPC failed to prove that miners employed in the Woodlawn or the Kentucky-Utah Mine beneficially used water intercepted by those mines for domestic or culinary purposes, or if they did, that this use was substantial. With respect to miners' use of water intercepted in the mine, Dr. James testified that excavation of the mine occurred only intermittently between 1915 and 1945, and that occasionally work at the mine discontinued for years at a time. He also estimated that the mine employed no more than fifteen miners to excavate the tunnel and operate necessary equipment, and most likely employed only four or five. According to Dr. James, water intercepted in mine workings is usually diverted to the portal through a ditch which also transports rock sediment and human and animal waste outside the tunnel, making this water unfit for human consumption. Nor is water intercepted in mines typically used to maintain excavation equipment, because this water is contaminated by dirt and rock sediment generated by the drilling and blasting necessary in mining operations.

      . Before 1939, Utah law allowed a party to obtain title to use of water by adverse possession. See Hammond v. Johnson, 94 Utah 20, 28, 66 P.2d 894, 900-01 (1937). Following an amendment to Utah's Water Code in 1939, adverse use that began before 1939 could still ripen into title after the effective date of the Act. See Mitchell v. Spanish Fork West Field Irr. Co., 1 Utah 2d 313, 317, 265 P.2d 1016, 1019 (1954); Wellsville East Field Irr. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 460-66, 137 P.2d 634, 640 (1943). However, adverse use commenced after the effective date of the act could not ripen into title by adverse possession: "[NJo right to the use of water either appropriated or unappropriated can be acquired by adverse use or adverse possession." 1939 Utah Laws ch. 111, § 1.


source: Caselaw Access Project

author: GREENWOOD, Presiding Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 186
    STATE of Utah, Plaintiff and Appellee, v. Marha TARNAWIECKI, Defendant and Appellant.
    No. 990225-CA.
    Court of Appeals of Utah.
    June 15, 2000.

      Lynn C. McMurray, McMurray, MceMur-ray, Dale & Parkinson, Salt Lake City, for Appellant.
    Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before GREENWOOD, P.J., JACKSON, Associate P.J., and BILLINGS, J.
   OPINION

GREENWOOD, Presiding Judge:

T1 Defendant appeals her conviction for violating a protective order, a class A misdemeanor, under Utah Code Ann. § 76-5-108 (1999). Defendant claims the trial court erred in denying her motion to extend the time to submit a motion to withdraw her guilty plea, arguing the court did not comply with legal requirements when it accepted her guilty plea. We vacate defendant's conviction and remand for further proceedings.

BACKGROUND

T2 Defendant's conviction arises from a domestic dispute with her estranged husband, Mark Grosser, on May 18, 1998. At the time of the dispute, defendant had been properly served with and was subject to a valid protective order prohibiting her from "attempting, committing, or threatening to commit abuse or domestic violence against Mark Grosser." Defendant believed Grosser was about to take their child out of Utah. She called the police to have them prevent the removal of her child, and also called her attorney, who was unavailable.

13 Fearing police would not respond in time, defendant went to Grosser's house. During the altercation that ensued, defendant kicked Grosser in the buttocks. An information was filed charging defendant with violating a protective order, a class A misdemeanor, and assault, a class B misdemeanor. Additionally, the prosecutor notified defendant that she was subject to a felony enhancement under Utah Code Ann. § 77-36-1.1 (1997) because she had violated the protective order within the past five years.

14 On July 17, 1998, defendant pleaded guilty to violating the protective order. In exchange for her plea, the State agreed to drop the assault charge and not pursue the felony enhancement. During the plea hearing, defense counsel told the court he had "gone over a waiver of constitutional rights" and that the written plea agreement included the elements of the offense. The trial court then discussed with defendant the maximum sentence for a class A misdemeanor and briefly went over the elements of the crime. Next, the trial court stated: "And if you plead guilty, you are admitting that [you committed the offense]. You won't go to trial, see witnesses, have a jury, appeal, and all of those constitutional rights that Mr. Archuleta has gone over with you? You understand all of that?" Defendant proceeded to sign her plea affidavit and submitted it to the court, which accepted her guilty plea. The defendant's plea affidavit does not mention the right to a speedy trial before an impartial jury.

1 5 On September 17, 1998, defendant submitted a motion to extend the time to submit a motion to withdraw her guilty plea and a motion to withdraw her guilty plea. After a hearing, the trial court denied defendant's motion to extend time, determining that State v. Price, 837 P.2d 578, 583-84 (Utah Ct.App.1992), controlled and therefore the court lacked jurisdiction to consider defendant's arguments or the motion to withdraw her guilty plea. Defendant timely appealed the trial court's order.

ISSUES AND STANDARD OF REVIEW

16 Defendant claims that the trial court erred on three grounds: (1) the court erred by not allowing her extra time to submit a motion to withdraw her guilty plea because she was not properly advised of the thirty day limit; (2) the court erred in determining it lacked jurisdiction to consider her motion to withdraw the guilty plea; and (3) the trial court committed plain error in accepting her guilty plea without conducting the required colloquy on the record. Additionally, defendant argues that section 77-13-6 of the Utah Code is unconstitutional. These four issues all present questions of law which we review for correctness. See Salt Lake City Corp. v. Property Tax Div., 1999 UT 41, ¶ 9, 979 P.2d 346 (Jurisdiction); State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191 (constitutionality of statute); State v. Holland, 921 P.2d 430, 433 (Utah 1996) (withdrawal of guilty plea); State v. Ostler, 2000 UT App 28, ¶ 6, 996 P.2d 1065 (plain error).

ANALYSIS

I. Was Defendant Properly Advised of the Thirty Day Limit

T7 Defendant argues she is entitled to extra time to withdraw her guilty plea because the trial court failed to advise her of the thirty day time limit for filing a motion to withdraw a guilty plea. Defendant claims the plea affidavit's reference to the thirty day limit was confusing and ambiguous, and provided inadequate notice of section 77-183-6's requirement.

¶ 8 In State v. Price, 837 P.2d 578, 582-83 (Utah Ct.App.1992), we recognized that Rule 11 of the Utah Rules of Criminal Procedure provides an exception to the thirty day requirement if the defendant is not advised that a motion to withdraw a guilty plea must be made within thirty days. Immediately above defendant's signature, the plea affidavit states in bold type: "I understand that I have the right to withdraw this plea within 30 days of today's date as long as the request is in writing and for good cause shown." We fail to see how this language is confusing, is ambiguous, or gives inadequate notice of section 77-18-6's requirement that a motion to withdraw must be made within thirty days. Furthermore, the trial court is not required to cover every element of Rule 11 during the colloquy so long as the record reflects that the defendant was made aware of every right. See State v. Maguire, 830 P.2d 216, 218 (Utah 1991) ("[SItrict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled."). Defendant's plea affidavit clearly stated a motion to withdraw must be made within thirty days; defendant was not entitled to additional time under the exception in Rule 11(f).

II. Did the Trial Court Correctly Determine It Lacked Jurisdiction

T9 Defendant argues that the trial court erred in determining that it lacked jurisdiction because the thirty day period does not start until a guilty plea is voluntarily entered. Under this novel argument, defendant claims the trial court must strictly comply with Rule 11 before section 77-18-6's thirty day limit is triggered. In other words, defendant contends that because the trial court did not conduct a proper colloquy with defendant-an argument considered later in this opinion-the guilty plea was a legal nullity. We disagree. Although there may have been errors in taking and entering the plea, the appropriate remedy is a timely motion to withdraw pursuant to section 77-183-6.

1 10 Moreover, in State v. Price, this court determined that section 77-13-6's thirty day period to bring a motion to withdraw is jurisdictional. See 837 P.2d 578, 583-84 (Utah Ct.App.1992). We are constrained by principles of stare decisis to apply Price to the facts of this case. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993); State v. Ostler, 2000 UT App 28, ¶ 7, 996 P.2d 1065. It is undisputed that defendant did not submit her motion to withdraw her guilty plea within thirty days of its entry. Because defendant failed to comply with section 77-13-6, the trial court properly determined that it lacked jurisdiction to consider defendant's motion to enlarge the time to bring her motion to withdraw.

III. Did The Trial Court Commit Plain Error In Accepting Defendant's Guilty Plea

§T11 Next, defendant argues that the trial court committed plain error by accepting her guilty plea without properly conducting the colloquy required by Rule 11. Specifically, defendant claims that the trial court failed to advise her of the factual basis for the charge against her, the minimum sentence, and the right to a speedy trial before an impartial jury. Although the trial court was precluded by Price from considering these arguments, this court can do so if defendant can persuade us plain error occurred or exceptional cireumstances existed. See State v. Ostler, 2000 UT App 28, ¶ 8, 996 P.2d 1065. "To succeed on a claim of plain error, a defendant has the burden of showing ') [aln error exists; (@i) the error should have been obvious to the trial court; and (ii) the error is harmful" Id. (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)) (alteration in original).

112 Utah's appellate courts have emphasized that "Rule l1(e) squarely places on trial courts the burden of ensuring that the constitutional and Rule 1l1(e) requirements are complied with when a guilty plea is entered." State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987). Importantly, strict compliance, rather than substantial compliance, with Rule 11 is required when accepting a guilty plea. See State v. Maguire, 830 P2d 216, 217 (Utah 1991). Because the trial court must address each element of Rule 11 before accepting defendant's guilty plea, we address each claimed error by examining the record to determine if it contains a sufficient basis to satisfy the requirements of Rule 11.

113 Defendant claims the trial court failed to adequately set forth the factual basis to establish defendant committed the crime as required by Rule ll(e)(4)(B). In order to satisfy the factual basis requirement, "the record must reveal either facts that would support the prosecution of a defendant at trial or facts that would suggest a defendant faces a substantial risk of convietion at trial." State v. Stilling, 856 P.2d 666, 672 (Utah Ct.App.1993). Thus, a sufficient factual basis requires that the record contain evidence that the crime was committed and that defendant likely committed the crime. See id.

114 In this case, defendant was charged with violating a protective order under section 76-5-108. Thus, the State had the burden of proving that defendant had been served with the protective order and knowingly or intentionally violated it. During the colloquy the trial court stated:

If you plead guilty to that class A misdemeanor, you are admitting that at 668 East Third Avenue in Salt Lake, on or about May 18th, you were the respondent subject to a Protective Order that had been issued under the authority of the Utah Code and that you intentionally violated that order after having been properly served with it. So there was an Order out that you didn't follow. You understand that?

Additionally, defendant's plea affidavit contained a brief summary of the event, stating that she "directly, or indirectly communi-catled] w/ the Petitioner, and Mutual Combat Resulted." Based on the court's colloquy and defendant's signed affidavit, the necessary factual basis was established on the record and the trial court did not err in this respect.

115 Next, defendant claims the court failed to inform her of the minimum sentence for a class A misdemeanor as required by Rule 11(e)(5). In defendant's plea affidavit, a matrix is included which lists the level of the offense and the corresponding jail time and fine that may be imposed. For a class A misdemeanor, the possible jail time is listed as "0-865 days" and the possible fine is "$0.00-$2,500.00." In her brief, defendant admits the minimum sentence would be "O days in jail and $0.00." While we recognize that the minimum sentence is often crucial information to a defendant making a voluntary and intelligent plea, it is difficult to see how the court's failure in this case to discuss the possibility that defendant may serve no time and incur no fine would result in a harmful error. See Ostler, 2000 UT App 28 at ¶ 8, 996 P.2d 1065 (holding plain error requires proof that error was harmful). Given that defendant's affidavit contained the minimum sentence and the fact that the minimum sentence for a class A misdemeanor is no sentence at all, the court did not commit harmful error in failing to discuss the minimum possible sentence during the colloquy.

116 Finally, defendant claims the court failed to advise her of the right to a speedy trial before an impartial jury as required by Rule 11(e)(8). While "a rigid colloquy or rote recitation of the elements of Rule 11 is not required, ... Rule l1(e) 'requires the trial court [during the plea colloquy] to find that seven detailed and specific criteria have been fulfilled" State v. Visser, 1999 UT App 19, ¶ 14, 973 P.2d 998, cert. granted, 982 P.2d 87 (Utah 1999) (second alteration in original) (quoting Maguire, 830 P.2d at 218). In Visser, we reversed the trial court's order denying defendant's motion to withdraw his guilty plea because the trial court failed to advise defendant of his right to a speedy trial before an impartial jury. See id. at ¶¶ 16, 20.

117 Our review of the record in this case reveals that the trial court wholly failed to advise defendant of her constitutional right to a speedy trial before an impartial jury. During the colloquy, the court stated: "And if you plead guilty, you are admitting that. You won't go to trial, see witnesses, have a jury, appeal, and all of those constitutional rights that Mr. Archuleta has gone over with you? You understand all of that?" Apparently relying on defense counsel's representation that he had discussed the waiver of constitutional rights with defendant and defendant's plea affidavit which contained a waiver of constitutional rights section, the court did not further advise defendant of her constitutional rights. Defendant's plea affidavit contains an express waiver of the following rights: counsel, self incrimination, confrontation and cross examination of aceus-ers, jury trial, presumption of proof, and appeal. The provision waiving the right to a jury trial contains no information concerning the right to a speedy trial before an impartial jury. Thus, defendant was neither advised of nor waived her right to a speedy trial before an impartial jury.

18 The trial court's failure to conduct the required colloquy on the record advising defendant of her right to a speedy trial before an impartial jury was error. See Ostler, 2000 UT App 28 at ¶ 23, 996 P.2d 1065. Additionally, in light of Visser and Rule 11, the error should have been obvious to the trial court. Finally, the failure to advise the defendant of her constitutional right to a speedy trial before an impartial jury is prejudicial and therefore harmful. See id. at ¶¶ 24-26.

$19 At oral argument before this court, the State attempted to distinguish this case from Ostler based on the difference in the quantum of the error. In Ostler, the trial court discussed only one of the seven Rule 11 requirements on the record. See id. at T11. In this case, the record reflects that all of the Rule 11 requirements were covered, except one-the right to a speedy trial before an impartial jury. Despite this difference in the quantum of error, we determine the legal rule established in Ostler controls the outcome of this case. The failure by the trial court to strictly comply with Rule 11, as mandated by Gibbons and its progeny, constitutes plain error requiring us to vacate defendant's conviction and allow her to withdraw her guilty plea.

IV. Is Section 77-1838-6 Unconstitutional

¶20 Last, defendant argues that the thirty day period to withdraw a guilty plea is unconstitutional because it deprives defendant of due process and equal protection. Because we determine the trial court committed plain error in failing to conduct the required Rule 11 colloquy, we need not reach this issue. In any event, we would decline to address this issue because defendant failed to adequately brief this issue as required by Rule 24 of the Utah Rules of Appellate Procedure.

CONCLUSION

¶ 21 Under State v. Price, 837 P.2d 578, 583-84 (Utah Ct.App.1992), the trial court correctly determined it lacked jurisdiction to consider defendant's motion to withdraw her guilty plea. Furthermore, the trial court did not err in its determination that defendant was properly advised that she must file her motion to withdraw within thirty days. However, the trial court's failure to advise defendant of her right to a speedy trial before an impartial jury was plain error, and we therefore vacate defendant's conviction and allow her to withdraw her guilty plea.

T22 We reverse and remand for further proceedings.

[ 23 WE CONCUR: NORMAN H. JACKSON, Associate Presiding Judge, and JUDITH M. BILLINGS, Judge.

      . Section 77-13-6(2)(b) provides: "A request to withdraw a plea of guilty or no contest is made by motion and shall be made within 30 days after the entry of the plea." Utah Code Ann. § 77-13-6(2)(b) (1999).

      . Utah R. Crim. P. 11(f) provides:
      Failure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty, no contest or guilty and mentally ill is not a ground for setting the plea aside, but may be the ground for extending the time to make a motion under Section 77-13-6.

      . The portions of Rule 11(e) relevant to this appeal states:
      The court may refuse to accept a plea of guilty, no contest or guilty and mentally ill, and may not accept the plea until the court has found:

      (3) the defendant knows of the right to the presumption of innocence, the right against compulsory self-incrimination, the right to a speedy public trial before an impartial jury, the right to confront and cross-examine in open court the prosecution witnesses, the right to compel the attendance of defense witnesses, and that by entering the plea, these rights are waived;
      (4)(A) the defendant understands the nature and elements of the offense to which the plea is entered, that upon trial the prosecution would have the burden of proving each of those elements beyond a reasonable doubt, and that the plea is an admission of all those elements;
      (B) there is a factual basis for the plea. A factual basis is sufficient if it establishes that the charged crime was actually committed by the defendant or, if the defendant refuses or is otherwise unable to admit culpability, that the prosecution has sufficient evidence to establish a substantial risk of conviction;
      (5) the defendant knows the minimum and maximum sentence, and if applicable, the minimum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered, including the possibility of the imposition of consecutive sentences....
      Utah R.Crim. P. 11(e).

      . Section 76-5-108(1) provides: "Any person who is the respondent or defendant subject to a protective order ... who intentionally or knowingly violates that order after having been properly served, is guilty of a class A misdemean- or...." Utah Code Ann. § 76-5-108(1) (1999).

      . This waiver provision states: "JURY TRIAL: I can choose to have a jury hear the case against me. Any verdict rendered by a jury, whether it be guilty or not guilty, must be by complete agreement of all jurors."

      . It is surprising that defendant's plea affidavit, which appears to be issued by the Third District Court, lacks a provision waiving this fundamental constitutional right and required element under Rule i1(e). We hope this affidavit is not typical of the plea affidavits used in Utah's trial courts.

      . Defendant also argued ineffective assistance of counsel. Because the trial court determined it did not have jurisdiction under Price, it did not consider this argument. While Ostler allows this court to consider a plain error argument that the trial court lacked jurisdiction to consider, it does not provide any avenue to reach other legal errors asserted by defendant. Therefore, we lack any legal basis to consider defendant's ineffective assistance of counsel claim.


author: BILLINGS, Judge:

text:
    2000 Utah Ct. App. 190
    STATE of Utah, Plaintiff and Appellee, v. Verl SIMMONS, Defendant and Appellant.
    No. 981326-CA.
    Court of Appeals of Utah.
    June 22, 2000.

      Geoffrey L. Clark, Ogden, for Appellant.
    Jan Graham, Atty. Gen., and Scott Keith Wilson, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before GREENWOOD, P.J., BILLINGS, and ORME, JJ.
   OPINION

BILLINGS, Judge:

T1 Defendant Verl Simmons appeals his conviction for rape of a child, sodomy on a child, and sexual abuse of a child, arguing that he received ineffective assistance of counsel. Defendant also appeals his sentence arguing the trial court abused its discretion in sentencing him to the maximum sentence allowed. We affirm.

FACTS

12 Defendant raped and sodomized his thirteen-year-old victim numerous times over a thirteen month period. The victim was a friend of Defendant's daughter. On October 4, 1995, Defendant was charged with rape of a child, sodomy on a child, and sexual abuse of a child. A jury found Defendant guilty of all three charges. The court sentenced Defendant to consecutive terms of fifteen years to life for rape of a child and sodomy on a child, and to a concurrent term of one to fifteen years for sexual abuse of a child.

13 Defendant argues on appeal that he received ineffective assistance of trial counsel and that the trial court abused its discretion in sentencing. This court previously remanded this appeal under Rule 28B, Utah Rules of Appellate Procedure, for an eviden-tiary hearing on Defendant's ineffective assistance claim.

ANALYSIS

I. Ineffective Assistance of Counsel

14 To establish ineffective assistance of counsel, Defendant "must show that his counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment and that counsel's deficient performance prejudiced him." State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376 (citations and internal quotations omitted). To prevail, Defendant "must identify specific acts or omissions that fell outside the wide range of professional assistance and illustrate that, absent those acts or omissions, there is a "reasonable probability" of a more favorable result"" Id. (citations omitted).

A. Improper Juror Contact

15 Defendant argues his trial counsel was ineffective for failing to bring improper juror contact to the court's attention. Following its Rule 23B evidentiary hearing, the trial court entered findings that: the juror had no improper contact with anyone during the trial Defendant did not establish that his trial counsel was informed of the alleged improper contact; and both the juror and Defendant's trial counsel would have reported any improper contact they were aware of to the trial court.

16 Because Defendant has not provided this Court with a transcript from the Rule 23B hearing, "we 'presume the trial court's findings are supported by competent and sufficient evidence"" State v. Byrns, 911 P.2d 981, 987-88 (Utah Ct.App.1995) (quoting Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct.App.1989)). " Therefore, our review is strictly limited to whether the trial court's findings of fact support its conclusions of law and judgment."" Id. (quoting Sampson, 770 P.2d at 1002).

T7 Although a presumption of juror prejudice attaches from improper juror contact, no such presumption attaches from contact that is not improper. See State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App.1992). Because the court found that no improper contact occurred, no presumption of prejudice attached, and a motion to excuse the juror based on the alleged improper contact would have been futile. Therefore, Defendant's trial counsel was not ineffective for failure to report improper jury contact to the court. See State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 ("'"The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." '" (quoting Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (quoting State v. Malmrose, 649 P.2d 56, 58 (Utah 1982)))).

B. Plea Offer

T8 Defendant argues his trial counsel was ineffective for failing to relay a plea offer by the State. Defendant argues that defense counsel must " 'consult with the defendant on important decisions{,] and keep the defendant informed of important developments in the course of the prosecution'" State v. Classon, 935 P.2d 524, 533 (Utah Ct.App.1997) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)).

1 9 On remand, the court found that potential plea discussions occurred between Defendant's counsel and the State prior to Defendant's preliminary hearing. However, the court found no formal plea bargain was offered as a result of those discussions. Although the trial court could not determine whether Defendant's counsel had discussed those conversations with Defendant, the court found that Defendant was not interested in a plea bargain at the time but instead maintained his innocence. The court further found Defendant's counsel again discussed the possibility of a plea bargain with Defendant prior to trial, but Defendant had no interest in a plea bargain and continued to maintain his innocence.

{10 The trial court found that Defendant failed to meet his burden of showing his attorney did not relay a plea offer, and Defendant does not attack the trial court's findings of fact. Moreover, Defendant has failed to show that he was prejudiced by his trial counsel's alleged failure to communicate. We therefore affirm the court's conclusion that Defendant's trial counsel was not ineffective for failure to communicate a plea bargain offer.

C. Removal of Juror for Cause

{111 Defendant next argues he received ineffective assistance of counsel because his trial counsel did not challenge a prospective juror for cause after voir dire raised an inference that she was biased.

{12 Although a claim of ineffective assistance of trial counsel premised on failure to challenge a juror for cause can succeed only if the juror was biased as a matter of law, see State v. Olsen, 860 P.2d 332, 335 (Utah 1993), Defendant does not prevail by merely showing bias. Rather, Defendant must show that " 'counsel's actions could not conceivably constitute legitimate trial tacties"" State v. Cosey, 873 P.2d 1177, 1180 (Utah Ct.App.1994) (quoting State v. Tennyson, 850 P.2d 461, 469 (Utah Ct.App.1993) (distinguishing standard applicable to whether trial court erred by failing to dismiss juror for cause from that applicable to whether trial counsel was ineffective for failing to challenge juror for cause)).

113 During voir dire, the prospective juror in question indicated that she was familiar with a situation involving a molestation or rape. In chambers, the juror disclosed that two of her sisters were molested by a neighbor when they were children and that she had been raped when she was fifteen. The following colloquy, in part, ensued in chambers:

The Court: Would [those events] affect your ability to be fair and impartial in this case? ~
Juror: I don't think so-well, I have talked to my fiancé about this because I also know someone who is accused of-well, someone who accused someone of raping them and it wasn't true. And that, I mean, I think I kind of see it from both ways now more than other people. I might understand it more. Cause, I think, to accuse somebody of that, because it was such a hard thing to deal with and to accuse somebody of that when it didn't happen, you know, I just, I can see both, how everybody kind of feels in a situation cause it's-
The Court: You think that might give you some particularly good insight into a case?
Well, I kinda think so, just because I think I would know-I mean, I just know what's going on more than some people did and I know it, to listen to it, and I think I'd pay more attention. And it's more relevant to me because I've had so many different experiences with it. Juror:
& ob as
The Court: Are there any issues that you are presently dealing with that is as a result of that that would tend to affect your ability to look at the evidence impassionately and impartially in this case? |
I don't think so. Cause it was, I don't know, it was just different. Juror:
&ok or
Mr. Cope: Your honor, I'd like to ask a few questions about this other situation that you know about where someone was falsely accused. How recent is that?
Juror: Very recent.
Are the people involved-could you identify the parties? I mean, not by name or anything like that, but are they like your brother and sister and neighbor or what? Mr. Cope:
Well, the person, this is Just, this is like a big family thing. Right now the person that accused somebody else is my sister so it really pisses me off because I just think, don't mess with that, you know. So I'm very involved. It's kind of something that is going on right now and we know that she's not telling the truth. Juror:
#m ok k
Mr. Cope: If you start to see parallels between your sister's situation and the evidence that is presented will you be able to put aside all those similarities and judge it just by what the evidence is that comes in this courtroom?
Juror: I think so because-
Mr. Cope: And not say oh, this is exactly like my sister, I know what is going to happen next?
I think so. Also because I have also been on the other end of it, and I also teach kids, so I work with them, you know. And I know, I mean, sometimes they're telling the truth and sometimes they're not, and if you don't look at the evidence then you are going to look stupid because half the time what you think is really happening, you know, if you don't pay attention to what else is going on that's not the case. So I mean, I work with kids all the time and every day. Juror:

§ 14 Defendant argues that the foregoing colloquy establishes that the juror was biased and his counsel was ineffective in not moving to strike the juror for cause. A statement by a juror that she was a victim of a similar crime is generally sufficient to raise a question of impartiality requiring the court's further inquiry. See State v. Woolley, 810 P.2d 440, 444 (Utah Ct.App.1991). However, in this case, the trial judge made extensive further inquiry which resulted in the juror stating she could view the evidence impartially.

{15 Further, we are not convinced by Defendant's bald statement that "Defense counsel's choice to allow [the juror] to sit on the jury cannot be considered sound trial tactic." Although the juror was a rape victim, she stated that the circumstances of that crime were different than the cireumstances of the case at trial. Additionally, the juror stated that her experience with her sister falsely accusing another person of rape would help her to view the evidence impartially. We cannot say that there was no reasonable basis for trial counsel's decision not to challenge the juror for cause in light of the juror's experience with false accusations of rape; trial counsel may well have believed that her experience would render her more sympathetic to Defendant's case. See, e.g., State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376 ("[In reviewing counsel's performance, we give trial counsel wide latitude in making tactical decisions and [do] not question those tactical decisions unless there is no reasonable basis supporting them.").

116 Moreover, we note that Defendant's trial counsel did succeed in challenging another juror for cause who, like the juror in question, had been raped. That Defendant's trial counsel successfully challenged this juror for cause shows that counsel understood how to do so when, in his judgment, the cireumstances warranted. See State v. Villarreal, 857 P.2d 949, 955 (Utah Ct.App.1993); Tennyson, 850 P.2d at 468-69. We can also infer from trial counsel's different treatment of these two prospective jurors that "trial counsel discerned some qualitative difference between [the] juror] he challenged for cause and those he did not." Villarreal, 857 P.2d at 955; see also Tennyson, 850 P.2d at 468 ("[Wle need not come to a conclusion that counsel, in fact, had a specific strategy in mind. Instead, we need only articulate some plausible strategic explanation for counsel's behavior." (citations omitted)).

( 17 We therefore conclude that trial counsel was not ineffective for his failure to challenge the juror for cause.

II. Sentencing

118 Defendant argues that the trial court abused its discretion in sentencing by relying on aggravating factors not supported by the record.

119 The two first degree felonies for which Defendant was convicted provide for indeterminate prison terms of five, ten, or fifteen years to life. See Utah Code Ann. § 76-5-402.1(2) (1995), Id. § 76-5-408.1. The trial court was required to impose the middle term of ten years unless, it found either mitigating or aggravating cireum-stances. See id. § 76-3-201(6)(a) (1999). To impose the greater or lesser mandatory minimum sentence, the trial court must " '(1) identify the mitigating and aggravating circumstances and (2) state the reasons for whichever minimum mandatory sentence is imposed." State v. Gentlewind, 844 P.2d 372, 377 (Utah Ct.App.1992) (citation omitted). The trial court's discretion in sentencing is not subject to "mathematical formula;" rather, "[the overriding consideration is that the sentence be just." Id.

11 20 The trial court found only one mitigating factor: Defendant's lack of prior convie-tions for similar offenses. As aggravating factors, the court found that: there had been multiple incidents of both rape and sodomy; Defendant made death threats to the victim to prevent her from reporting Defendant's acts; Defendant committed perjury during the trial by denying his actions; Defendant knew that the victim was vulnerable due to past abuse; and Defendant was in a relationship of trust with the victim because he was father to the victim's best friend, he was entrusted to take care of the victim when she stayed in Defendant's home, and he told the victim's mother that he could be trusted as a former police officer.

121 Defendant attacks the trial court's findings that he was in a position of nonfamil-iar trust and that he knew his victim was especially vulnerable, claiming that he knew that his victim had suffered prior abuse, but that he did not know that the abuse had been sexual. However, Defendant attacks only these two aggravating factors. Even if we were to conclude that the evidence does not support these two aggravating factors, the three remaining aggravating factors, which Defendant does not attack, are certainly sufficient to uphold the sentence imposed. See State v. Lovell, 758 P.2d 909, 912-13 (Utah 1988) (affirming sentence where one of two aggravating cireumstances relied on by trial court sufficed to support sentence imposed); State v. Yoder, 935 P.2d 534, 549 (Utah Ct.App.1997) (holding error in finding some aggravating factors harmless when remaining aggravating factors sufficed to support sentence imposed). Here, Defendant raped and sodomized his victim repeatedly over the course of a year, threatened to kill her if she reported his acts, and then perjured himself at trial. We conclude that these aggravating factors alone suffice to affirm the trial court's imposition of the maximum mandatory sentence.

CONCLUSION

122 Because Defendant failed to provide this Court with a transcript of the Rule 28B hearing, we assume that sufficient evidence supports the trial court's findings. The trial court's findings show that Defendant's trial counsel did not fail to report improper juror contact to the court at Defendant's trial and did not fail to communicate a plea offer to Defendant. Additionally, Defendant's trial counsel could have had tactical reasons for not moving to strike the potentially biased juror. Accordingly, we hold that Defendant's trial counsel was not ineffective. Finally, the trial court did not abuse its discretion by imposing the maximum sentence allowed for rape of a child and sodomy on a child. We therefore affirm.

123 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge.

24 I CONCUR, EXCEPT THAT AS TO SECTION IA, I CONCUR ONLY IN THE RESULT: GREGORY K. ORME, Judge.

      . Rule i1(e)(2) of the Utah Rules of Appellate Procedure provides: ""If the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion."

      . If contact between a juror and a witness, a party, or court personnel is more than "brief and incidental," a presumption of juror bias attaches. State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App.1992). However, no such presumption arises from a brief exchange of civilities. See id.

      . When a prospective juror's comments during voir dire raise a question as to the juror's impartiality, the trial judge must underiake further inquiry to assess the juror's impartiality. See State v. Boyatt, 854 P.2d 550, 553 (Utah Ct.App.1993).

      . Section 76-3-201(6)(a) provides:
      If a statute under which the defendant was convicted mandates that one of three stated minimum terms shall be imposed, the court shall order imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime.