163 P. 1092 | Utah | 1916
Lead Opinion
(after stating tbe facts as above).
TJje first question presented by the appeal is, Did the court err in its findings of fact wherein it held that 84-J per cent, of the water flowing from the wells is developed water that did not, before the wells were constructed, come to the surface of the earth through the orifices and subterranean channels from which issues and flows the spring and seepage water of King's Meadows?
The court, in effect, found, and there is an abundance of evidence to support the finding, that the waters from the wells and the normal flow of the springs and seeps came from the same source and are supplied by the same underground reservoir or body of water. In fact no other conclusion is permissible from the evidence, considered, as it must be, in its entirety. Counsel for respondent concede this. In their printed brief they say:
‘ ‘ There is no question made by us, # * * but what the operation of the wells did interfere with the water of some of the springs to the extent of taking therefrom a small percentage of the water.”
The court, before the trial was concluded, suspended proceedings and made an order that:
‘ ‘ The water in dispute be measured on the 21st day of June, 1912, and that immediately after such measurements that the wells be plugged so as to prevent any waters flowing therefrom; that five days later, to wit, June 26th, the waters flowing in said basin be measured; that on July 1, 1912, the waters flowing from said basin be again measured, and immediately after such measurement that the wells be turned loose so that the water may flow therefrom; that on July 11, 1912, the waters from the wells and springs be measured separately; that on July 21, 1912, the said waters flowing from said wells and springs be measured separately, and that the wells be then plugged so as to prevent any water from flowing therefrom; that said measurements be continued each*398 and every month thereafter in the same manner * * * until final trial of this cause.’ ’
The court appointed J. Oscar Anderson, a civil engineer, “as the agent of the court to make such measurements.” Anderson, in pursuance of the order, made measurements as therein directed to and including July 1, 1912, and thereafter made measurements every ten days, instead of every five days, to and including January 21, 1913. The flow of the water from the spring, as shown by the several measure^ merits, also the flow from the wells when unplugged, was as follows:
Well Spring
Water. Water.
June 21 (wells unplugged).453 .263
June 26 (wells plugged). .336
July 1 (wells plugged). .336
July 11 .440 .263
July 21 (wells plugged).. .338
August 1 .438 .263
August 11 (wells plugged). .335
August 21 .438 .249
Sept. 1 (wells plugged).•. .365
Sept. 11 .439 .293
Sept. 21 (wells plugged). .352
Oct. 1 .540 .30
Oct. 11 (wells plugged). .364
Oct. 21 .■.452 .293
Nov. 1 (wells plugged). .388
Nov. 11 .439 .291
Nov. 21 (wells plugged). • .365
Jan. 1 (wells plugged). .394
Jan. 21 .'... .452 .313
The decimals indicate fractions of a second foot.
The result of the measurements made by Anderson in pursuance of the court’s order shows that when the wells are permitted to flow continuously for a period of ten days only, there is a substantial reduction in the flow of water from the springs. To what extent a continuous and uninterrupted flow from the wells would affect the springs in the course of a few months or a year is a matter of conjecture only.
“The storing of water in said reservoir did not render any water owned by the defendants impure and unwholesome or unfit for culinary use. ’ ’
The findings of fact and conclusions of law were made and judgment rendered September 4, 1914. On January 2, 1915, defendants duly served and filed notice of motion to move for a new trial. One of the grounds stated in the motion is, “Newly discovered evidence material for defendants * * * which they could not with reasonable diligence have discovered and produced at the trial. ’ ’ In support of the motion defendants filed affidavits in which, among other things, it was recited:
“That since the taking of testimony in this case upon the former trial at Richfield, said county and state, the reservoir belonging to said plaintiff which, during the said trial and for many months prior thereto was covered with water, broke and the water was drained from said reservoir exposing the bed thereof to view, and disclosed the fact that there were springs and seeps in the said reservoir bed, as contended by said defendants at the said trial. ’ ’
No counter affidavit was filed by respondent.
The cause is remanded, with directions to the trial court to reopen the case and take further evidence along the lines herein suggested, and to make findings of fact and conclusions of law defining the rights of the respective parties to the waters flowing from the wells, and enter a decree in harmony with and responsive to such findings of fact and conclusions of law, and to incorporate into the decree provisions in accordance with the views herein expressed respecting the seepage water intercepted and collected by plaintiff’s drain ditch, and the spring and seepage water, if any is shown to exist, arising in the bed of the reservoir. The trial court is further directed that unless plaintiff devises and adopts some means of preventing the befouled reservoir water from seeping, percolating, and finding its way into the stream used by the Nebekers, or furnishes them at their ranch sufficient potable water without expense to them for culinary and domestic purposes, to incorporate into the decree a provision perpetually restraining plaintiff from rebuilding and maintaining the reservoir.
Appellants to recover their, taxable costs on this appeal.
Concurrence Opinion
I concur. I desire to add a few words, however, to what Mr. Justice McCARTY has said. I fully approve the rule laid down by this court that when a person comes into court claiming that he has developed water he should be required to establish his claim by clear and convincing proof, and if he fails in that the court should deny his claim. In case, however, the court is satisfied that the claimant has developed some water under circumstances like those in this ease, it should, nevertheless, not award him a given per cent, of the whole water which is claimed by the claimant and prior appropriators, as the trial court did in this case. Such a decree may operate very harshly against the prior or original appro
I am of the opinion, therefore, that in this case the district court should first find the quantity of water the appellants have used and are entitled to for all seasons and for all purposes, and if there is any excess water, such excess only should be awarded to the respondent, and the latter should not be permitted to use any water at any time, unless there is an excess over the quantity awarded to the appellants.
Rehearing
On Petition for Rehearing.
Respondent has filed a petition for rehearing. The only question presented by the petition relates to the taxation of the cost of printing appellant’s brief and abstract. Counsel for the respective parties to this appeal have filed briefs in
The order relating to the cost of this appeal is hereby modified by reducing the amount of the cost assessed against respondent in a sum equal to the cost of printing thirty-five pages of appellant’s brief.