8 Utah 253 | Utah | 1892
The following opinion was first delivered by the court:
This is a suit brought to determine the water-rights in Grassy Trail Oreek or Cottonwood, in Emery county, The only question of law involved in the ease is the date of the appropriation of water made on the 'unsurveyed lands of the government. We think that where a person settles on the public domain unsurveyed, with the intention of acquiring title so soon as he can under the law, and does acquire title, and afterwards appropriates water for its cultivation, such appropriation is effective from its date, although it may be several years before he succeeds in perfecting his title. An examination of the evidence in this case clearly shows that it is impossible to determine the rights of the parties, for it is too indefinite and uncertain. Litigants in reference to water-rights should
Thereupon a rehearing was granted and the following opinion was delivered:
This suit in equity was brought by the plaintiff to determine the right to the water of Grassy Trail Creek, sometimes called “ Cottonwood Creek/’ in Emery county. A decree was entered in the court below in favor of the defendants, and the complaint was dismissed. From the judgment and order denying his motion for a new trial the plaintiff appeals to this court, where a hearing of the appeal was had, and the complaint ordered dismissed without prejudice, and the findings of fact were set aside. A rehearing was afterwards granted by this court, to which our attention is now called.
The appellant contends that the findings of fact are not supported by the evidence; that they are against the law; and that the evidence is not sufficient to justify the entry •of the decree. A careful examination of all the testimony given in the case — being 435 pages — convinces me that the rights of these parties cannot be properly determined under the testimony as it stands. The testimony is too indefinite, uncertain, and contradictory on which to base a decree. The findings of fact are not so clearly sup