15 Utah 225 | Utah | 1897
Lead Opinion
This is a decree of the First judicial district court of Box Elder county, giving the defendants all the waters of Marble creek, in that county, for irrigation purposes. The defendant company was organized in 1893 for the purpose of controlling and distributing so much of the water of said creek as might be necessary for the irrigation of the defendant’s lands. The record shows that Marble creek has its source in the mountains abdve Park valley, through which it flows about 10 miles; that the defendants own and occupy a number of small farms, aggregating about 900 acres, which they irrigate with its waters; that the plaintiff occupies 160 acres of meadow lands, situated from 4 to 5 miles below the lands of the defendants, about 100 acres of which he alleges have been irrigated by himself and through his predecessors in interest, from the waters of said creek, for about 30 years. The defendants deny the appropriation by the plaintiff and his grantors, and claim by way of cross complaint that they and their grantors have used all the waters of said creek for about 26 years except the overflow during high water. The case was tried by the court, and the decree entered on the 30th day of June, 1896. The testimony on some of the facts material to support the decree was contradictory and unsatisfactory, but there seems to be little or no dispute upon the vital issue of plaintiffs right to use a sufficient amount of said water for the pur
The mere fact that the defendants had secured control of all the water through a so-called “saving ditch” would not give them the absolute right to deprive a subsequent appropriator of such quantity as they did not put to a beneficial use. Fort Morgan Land & C. Co. v. South Platte Ditch Co., 18 Colo. 1; Reservoir Co. v. Southworth, (Colo Sup.) 21 Pac. 1028.
The awarding of a priority in excess of the amount actually appropriated for a beneficial use at the time is error. The saving ditch was constructed at a time when the plaintiff, or his predecessors, was using part of the water. It diverted all the water from the natural channel for some distance and then discharged the overflow back into the channel. This could give to defendants only such increase or saving of the volume of the stream as was occasioned by the construction of the ditch; and whatever rights the plaintiff had acquired in ihe waters of Marble creek prior to the construction of the ditch would not be impaired, even if he made no objection, or did not aid in its construction. Their relation to each other would be that of tenants in common respecting the waters of the stream, and a court of equity has power i o ascertain and determine their respective rights as to the waters therein flowing. Irrigation Co. v. Moyle, 4 Utah 327; Frey v. Lowden, 70 Cal. 550; Combs v. Slayton, 19 Or. 99.
The waters of a prior appropriator are fixed by the extent of his appropriation for a beneficial use, and others
In the case at bar the findings of the lower court admit of a surplus of water during the early part of the season, ending in the month of June, and at a time when the plaintiff most needed the water; yet in the decree the court decides that the defendants have a prior right to use sufficient of the waters of Marble creek to irrigate 1,000 acres of land; thus by order of court permitting an enlargement of defendants’ rights to the extent of 100 acres from the amount of acres now farmed by them, and that at a time of year when there is a surplus of water. We are led to the conclusion that the trial court erred in rendering the decree, and we are of the opinion that the same should be modified so as to give to plaintiff an equitable portion of the water in dispute, viz.: That the plaintiff be decreed to have the uninterrupted flow of said stream in its natural channel at stated periods of 48 hours each, commencing at 12 o’clock noon with the 10th day of May, the 25th day of May, the 10th day of June, the 20th day of June, the 1st day of July, and the 10th day of July in each year; and that the plaintiff be decreed the right to use for irrigation purposes all surplus or overflow waters of said Marble creek during the months of April, May, June, and July of each year.
Dissenting Opinion
(dissenting):
The plaintiff alleged in his complaint that about 30 years ago he appropriated enough of the waters of Marble creek to irrigate 100 acres of land, and that he had never abandoned his appropriation. This allegation the defendants denied, and filed a cross complaint against the plaintiff, in which they alleged that they and their grantors had used all the waters of the creek for about 26 years, except the overflow during high water caused by melting snow or heavy rains for short periods. A large number of witnesses testified on both sides of these issues. 'The trial court, after hearing all the evidence, found for the defendants to the original complaint and for the plaintiff to the cross complaint. It must be C021-ceded that the evidence was very conflicting and unsatisfactory, and reasonable men, after considering it, might differ as to the side on which it preponderated. When the proof of any fact is so unsatisfactory and uncertain, this court has refused to reverse. The trial court hears the witnesses in a case like this, and observes their appearance and demeanor on the stand, and has better op
Motion for rehearing:
On motion for rehearing the above opinion was modified by striking out therefrom the words, “And the 10th day of July in each year,” in line 31 on page 229 of the opinion. With this modification, the motion for rehearing is overruled.