7 Utah 450 | Utah | 1891
This is an appeal from an order of nonsuit, and also ■from an order overruling appellant's motion for a new trial. The action was for an injunction to restrain the respondent from diverting the waters of Sage creek and Fullmer springs. It appears from the evidence in the record that these waters were appropriated in 1862 to •domestic and agricultural uses by six men, and that with their express consent Springville took control of them in 1876, and since then has distributed them hy its water-master, according to rules and regulations made by authority of ordinances, to a portion of the people of the city, including the original appropriators, who have used them for domestic and agricultural purposes, .and that the city has kept the ditches in which such waters were conducted in repair.
The ruling of the court below assigned as error was based upon the assumption that the plaintiff had no .such right to control the use of the waters of the creek and springs as authorized it to institute and maintain this action.
Section 15 of the charter of Springville is as follows: viTo provide the city with water, to dig wells, lay pump-
Having determined that the plaintiff possessed authority to acquire the right to the waters of the creek and springs, the further question arises, did it do so? Section 2780, 2 Comp. Laws Utah 1888, is as follows: “A right to the use of water for any useful purpose * * * is hereby recognized and acknowledged to have vested and accrued, as a primary right, to the extent of, and reasonable necessity for, such use thereof under any of the' following circumstances: (1) Whenever any person or persons shall have taken, diverted, and used any of the unappropriated water of any natural stream, water-course,.
The municipal government of Springville is a legal agency of the people, created for their benefit, and to act for them. Having acquired the right to control and distribute the waters in question, and such authority having been given to be exercised for the benefit of the people, and such exercise being beneficial, the same became obligatory upon the city, (Levy v. Salt Lake City, 5 Utah, 302, 16 Pac. Rep. 598); and it was not only the right, but the duty of the city to employ such remedies as the law or the rules of equity aathorizedto defend
We hold that the court erred in granting the non-suit and in overruling the plaintiff’s motion for a new trial. The judgment of the court below is reversed, and that court is directed to grant plaintiff’s motion for a new trial.