The city and the American Fork Irrigation Co. are like two angry farmers standing on opposite sides of a ditch with shovels poised.
Both claim to own the American Fork River water flowing through the irrigation system. The conflict between the two entities is shaping up to be a battle out of the Old West. Legend has it more early settlers died by the shovel than by the bullet.City officials say the dispute must be resolved before they can decide whether to participate in a proposed $48.2 million northern Utah County pressurized irrigation system. The irrigation company strongly favors a five-city system that would pump secondary water to homes for outdoor use. It's pushing the city for a decision.
"The foresight of some of the people on this (City) Council is similar to looking into a rearview mirror," said Farrell Larson, irrigation company president.
City Council members have a stream of unanswered questions regarding the proposal. They mostly revolve around water ownership, although the issue runs much deeper.
"We first have to determine what water is owned and who owns it," Councilman George Brown said.
The irrigation company says it has sorted that out through an exhaustive study of city, state, federal and LDS Church records dating back to 1851, the year American Fork was settled.
"Based on our research, we conclude that American Fork City does not have a valid claim of ownership to any water currently held within the American Fork irrigation system except that represented by shares of stock," concluded water company attorneys Thomas J. Scribner and Donald E. McCandless. The city owns about 20 percent of the company's stock.
Mayor Jess Green said an attorney for the city came to the opposite conclusion several years ago. The city currently is doing its own research into the ownership question. "There are two sides to this," Green said.
The report by Scribner and McCandless, presented to the council Tuesday, drew mostly criticism.
"I don't see this as a scholarly approach," said Brown, an attorney. He said he views the report as an attempt to persuade the council to accept the irrigation company's position.
City officials also contend the irrigation company has operated counter to the Utah Constitution since its incorporation in 1919. The state constitution forbids municipalities from selling waterworks, water rights or water sources. Brown maintains the city still owns the water because the transfer to the irrigation company was unconstitutional.
Scribner said his search of historical documents, hampered by the fact that American Fork ity records between 1853 and 1919 are lost, shows "unequivocally" the city did not own any water originally appropriated by the first settlers.
"Rather, the records show consistently that the city's role was one of trustee or water master," the report says.
The city would have to demonstrate it obtained and held title to the water between 1854 and 1896, the year the state constitution was adopted. "From the records available, that does not seem possible," according to the report.
The battle could spill into a courtroom someday, although both sides prefer it didn't.
"I won't tell you we will fight this in court," Larson told the council. But "if stockholders want to fight it in court, we'll fight it in court."
Green said he's not ready to bring the matter to a head. "I don't know that I want to go court over it unless it appears something will be taken away from the people in the area. Then maybe we'll have to."