14 Utah 42 | Utah | 1896
It apears from the evidence in this record that in the year 1860 the late Feramorz Little owned a canal through which he was irrigating about 200 acres of land from the Jordan river; that the canal was four miles long, two of
Objection is also made to the finding that defendants have the right to take the water out at six different places. Assuming that the land is undulating, the irrigation of it is less difficult and less expensive when the water is taken out of the canal at different points. It appears that the water has been taken from the canal at as many as six places.
It is insisted that the defendants should be required to take water- under the direction of the water master, as the stockholders of the plaintiff are required to do. The court below held that the defendants had a right to take water under the agreement made between the late Fera-morz Little and the Jordan Irrigation Company, and not as stockholders. In this we think the court found correctly, but, while this is so, the defendants should follow the directions of the water master, so far as they may be, according to the agreement, reasonable; and they should not take out water at more points than conve
The plaintiff also insists that the defendants should contribute proportionately with the stockholders to the cost of cleaning out and keeping the canal in repair. The court below found that the agreement by which all the parties were bound exempts the defendants from the payment of such costs and expense, and this finding seems to be supported by the weight of evidence.
The plaintiff also insits that the court erred in granting an affirmative decree for the defendants, without a cross complaint having been filed. In the prayer of the complaint the plaintiff asked that the defendants might be required to set forth their alleged adverse claim, and that the court might decree it to be null and void. And the defendants in their answer set up the agreement, and the facts upon which they based their right to use the waters of the canal, and prayed that their right, as shown by the allegations of their answer, might be decreed to them, and for such other relief as might be just and equitable. Under the pleadings, the court was required to determine from the evidence the rights of the respective parties with respect to the canal and the waters thereof. The pleading in this case presents an exception to the general rule that affirmative relief on an affirmative decree will not be granted to the defendants without a counter claim or a cross complaint. Kitts v. Austin, 83 Cal. 167, 23 Pac. 290; Wilson v. Madison, 55 Cal. 5; Miller v. Luco, 80 Cal. 257, 22 Pac. 195.
We find no reversible error in this record. The judgment is affirmed