189 P. 587 | Utah | 1919
This case is here on second appeal. See 49 Utah, 569, 164 Pac. 856. The first appeal was taken by Vincent and Mary Shurtliff, hereinafter called respondents, alone, while the plaintiff corporation and other defendants in the action, hereinafter styled appellants, now appeal. On the first appeal the findings of fact, conclusions of law, and the decree made and entered by the district court were affirmed as to all the defendants except the respondents on this appeal, and were also affirmed in favor of the plaintiff corporation except upon two questions hereinafter more specifically stated. The cause was accordingly remanded to the district court, with directions to hear further evidence upon the two questions reserved and to make findings of fact and conclusions of law and to enter 'a decree upon those questions. The district court has fully complied with the directions of this court in that regard, and the present appeal is from the judgment or decree entered pursuant to the directions of this court as just stated.
In view that certain parties now attempt to appeal whose rights as fixed by the district court in the former decree were affirmed by this court, the case might present some complications were it not for the fact that counsel for all of the appellants have, in their brief, limited their contention, which, stating it in their own language, is as follow's:
“There is only one fact or point to be determined, and that one is: Shall the respondents, Shurtliff, have an additional fixed quantity of water flowing constantly for culinary uses above and over their proportion as determined by the number of shares owned by them,*199 or shall they he required to supply themselves with culinary water out of their share or proportion decreed to them hy the court?”
In support of their contention, counsel vigorously insist that the district court erred in its construction of the former opinion respecting what was adjudicated by this court. They also urge with much vigor that this court erred in its former conclusions of law, and that we should revise and modify those conclusions, and in that connection say that in the former opinion we held that the appellants there (respondents here) were not entitled to water for culinary and domestic purposes in addition to the water, awarded them for irrigation. In making these contentions, counsel inadvertently have themselves placed an erroneous construction upon what is said in the former opinion in regard to the rights of the respondents to the use of water for domestic and culinary purposes In addition to the water awarded’them for irrigation. By reference to 49 Utah, page 574, 164 Pac. 856, it will be seen that the writer stated the propositions for which counsel for the respondents were contending with regard to their water right for irrigation: (1) That they were not bound by the arbitration agreement of 1879 entered into by Harker, their predecessor in interest, because they were not parties to that agreement; and (2) that they should have been awarded the water originally appropriated by their predecessor before the arbitration agreement of 1879 was entered into, and that the water should have been apportioned to them in second feet instead of in shares, as was done by the district court. It was there said that counsel was in error on both propositions. Counsel for appellants on this appeal, however, now insist that what we there said applied to the water rights of the respondents both for irrigation and for culinary and domestic purposes. In that contention counsel are clearly in error. If counsel will only cursorily examine all that is said on pages 575 and 576 (164 Pac. 858 and 859) upon those subjects, they will see that we segregated the water rights'.claimed by the respondents for culinary and domestic purposes from that claimed by them for irrigation purposes, and that we did not consider the water claimed by them for culinary and domestic
In view of what has already been said, it necessarily follows that the question propounded by appellants’ counsel, namely, are the respondents on this appeal entitled to a continuous flow of water for culinary and domestic purposes, must be answered in the affirmative. Further, that the district
The court, however, entered judgment by which it awarded the respondents on this appeal a continuous flow of one-half of a second foot of water for culinary and domestic purposes, measured at the diversion point, in addition to their water right for irrigation. This award was based upon a finding that it was necessary to divert that quantity of water from
The evidence shows that the per capita consumption of water in Salt Lake City for culinary, lawn sprinkling, toilet purposes and flushing and sprinkling streets — in short, for all purposes — does not exceed 200 gallons each day, while respondents claim a daily supply of water of over 323,000 gallons for culinary and domestic purposes for a small family and for only a few head of stock. This, in this arid region where the evidence conclusively shows, there is practically a constant scarcity of water, and where the ditch company nearly always received less than the amount of its original appropriation for the most useful purposes, amounts, to say the least, to a most profligate waste of water, which waste should, if possible, be minimized if it cannot be entirely prevented. Counsel fop respondents appreciate the situation in
Nor is there any merit io the contention that in limiting respondents to a daily use of 20,000 gallons delivered at their home, in ease the ditch company elects to do that under the conditions stated in the decree, the ditch company is awarded something and the respondents are deprived of something contrary to law and right. The evidence is without any conflict whatever that all the water flowing in Big Cottonwood creek, which is the source of supply of all the parties to this action, has been appropriated and beneficially used for more than sixty years; that the ditch company has succeeded to all water rights flowing in the ditches involved in this proceeding subject to the rights of the water users on the ditches; and that it is only during the short high-water season in each year that the ditch company and the other water users receive the
Neither is it true, as contended by counsel that the courts are without power to change or to in any way affect the water user’s means or method of diversion. That question was before this court and was decided in the case of Salt Lake City v. Gardner, 39 Utah, 30, 114 Pac. 147.
Respondents’ counsel, however, further contend that the decree is too indefinite and uncertain regarding the manner and method of changing respondents’ present means or method of diversion. There is some merit to that contention. It is a matter that can easily be remedied,
Before concluding this opinion, and in order to avoid any misunderstanding, we desire to state that in arriving at the foregoing conclusion we have not been unmindful of the conditions prevailing along the ditches owned by the ditch company, including the one from which respondents
From what has been said it follows that the findings of fact, conclusions of law, and decree as made by the district court should be, and they accordingly are, affirmed on both appeals.
ON MODIFICATION OF OPINION.
The respondents have filed an application in which they ask this court to modify the last opinion filed in this ease in the particulars hereinafter indicated.
They now ask to be given the preferential right to construct a pipe line through which to take the water from their diverting point on the main ditch to their premises and to be awarded all the water that may be saved thereby. The application is based upon the theory that in view that the district court awarded respondents one-half of one second foot of water at their diverting point or intake, and that a considerable quantity of water is wasted in being conducted through the open ditch, therefore, if water may be saved by means of a pipe line, the respondents should have the preferential right of saving and using it. The claim is, however, in our judgment, not supported by the premises. Neither the district court nor this court has awarded respondents one-half of one second foot of water. What was done, in substance, was this: The district court found that owing to seepage, evaporation, and other causes, in order to supply respondents with pure potable water at their home through the open ditch it was necessary to divert one-half of one second foot of water from the main ditch at their point of
In view that all of the water users along the ditch in question are tenants in common of all of the water flowing in the ditch, and of the sources of supply, the question of prior rights is entirely eliminated from this case. The district court found that the respondents had acquired a right in their means of diverting water from the main ditch, namely, through the open ditch. It further appeared from the evidence that in taking the water through that ditch there was necessarily a great waste of water which could be put to a beneficial use by the plaintiff company by distributing it to the water users along the main ditch, who, during the low-water season, were always short of water. The court therefore, in accordance with the principles laid down in the case of Salt Lake City v. Gardner, 39 Utah 30, 114 Pac. 147, while recognizing respondents’ right in their means of diversion, nevertheless gave the plaintiff company the right to put in a pipe line as an improved means of diversion at its own expense and by that means save the water which was being wasted through respondents’ open ditch; and, after delivering respondents’ 20,000 gallons daily at their home, the company was permitted to distribute the water thus saved among the water users along the ditch, as before stated.
We have no means of knowing what was in the court’s mind when it found the quantity of water that should be delivered to be 20,000 gallons daily, but it may well be that that- quantity may have been based, partially at least, upon the fact that all the water users along the ditch in ques
There is, however, some force in respondents’ contention that, in case the plaintiff company shall fail to put in a pipe line to prevent the water from being wasted, some one should be permitted to do so. Under the circumstances, and in view of the great scarcity of water in the valley, especially during the low-water season, no court would be justified in permitting an unnecessary waste of water to continue, regardless of how long that condition has existed. Again, although the water users along the ditch are tenants in common as before stated, yet the one who is willing to make an effort to save water and to pay the costs and expenses incident to making such effort by means of pipe lines or otherwise should be encouraged and be given a fair share of the water saved, precisely as was done by the district court in this ease. While we are of the opinion that in view of all the circumstances the order giving the
"We remark that although the plaintiff company, upon its own motion, was given an extension of time within which to file an application for a rehearing, it failed to file such an application within the time fixed by this court. It however, attempted to file a reply in which it opposes
For the reasons stated, in addition to the other modifications required in the original opinion, the district court is also directed to fix some reasonable time limit within which the plaintiff company shall put in a pipe line, and, in case it shall fail or refuse to do so within the time fixed, then to permit the respondents to put in the pipe line at their own expense and, after the measurements are made as herein suggested, then to enter an order fixing the quantity of water that is being saved by means of the pipe line and permit the respondents to divert such quantity from the main ditch into the pipe line and use the same on their premises. In all other respects the former opinion is .adhered to.