Cole v. Richards Irrigation Co.

75 P. 376 | Utah | 1904

McCARTY, J.,

after stating the facts, delivered the opinion of the court. It is settled in this arid region by abundant authority that when the waters of a natural stream have been

1 2 appropriated according to law, and put to a ben-efieial use, the rights thus acquired carry with them an interest in the stream from the points where the waters are diverted from the natural channel to the source from which the supply is obtained, and any interference with the stream by a party having no interest therein that materially deteriorates the water in quantity or quality previously appropriated, to the damage of those entitled to its use, is unlawful and actionable. Kinney on Irrigation, 249; Bear River & Auburn Water & Min. Co. v. N. Y. Min. Co., 8 Cal. 327, 68 Am. Dec. 325; Hill v. King et al., 8 Cal. 337; Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769; Phœnix Water Co. v. Fletcher, 23 Cal. 482; Natoma Water & Min. Co. v. McCoy et al., 23 Cal. 491; Stein Canal Co. v. Kern Island Irr. Co., 53 Cal. 563; Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537. Section 1, art. 17, Const. Utah, provides that “all existing rights to the use of any of the waters of this State for any useful or beneficial purpose, are hereby recognized and confirmed.” It will thus be observed that the organic law of this State has put it beyond the power of any party to lawfully go upon a stream of water in which he has acquired no right, and interfere with existing rights, or to destroy or cut off the source of supply of such stream because it happens to be a pond or lake. It is a matter of common knowledge that some of the most valuable and permanent sources of water supply in this State are its numerous lakes, which bodies of water vary in size from a few square, rods to several townships of land in extent, .and.sections 1265, 1266, Revised Statutes 1898, recognize the rights that have been acquired by appropriation of the waters of the lakes as well as other natural sources of supply within the State.

3 It is conceded that respondents are, and for many years have been, the owners of and entitled to the use of all the normal flow or primary waters of Little Cottonwood creek. Therefore, in the light of the foregoing principles, the only question for our determination is, do the natural waters of the lakes under consideration form a part of the source of supply of Little Cottonwood creek? If they do, then the judgment of the district court must be affirmed. The great preponderance of the evidence not only shows that the lakes in question form a part of the source of supply of this creek, but, with the exception of the upper lake, they form a part of the natural channel of one of its tributaries; hence it necessarily follows that respondents have the same usufructuary rights to the waters which naturally flow and collect in these lakes, which eventually find their way into the main channel, as they have to the balance of the natural flow of the creek. Malad Val. Irr. Co. v. Campbell (Idaho), 18 Pac. 52. While it is the policy of the State to encourage enterprises which tend to increase the available supply of water in the State, yet parties engaged in these laudable undertakings must respect the vested rights of others to the streams and other sources of water supply throughout the State accrued to them by prior appropriation.

The judgment is affirmed; the costs of this appeal to be taxed against appellants.

BASKIN, C. J., and BARTCH, J., concur.