Elmer v. McCune

81 P. 159 | Utah | 1905

BARTCH, C. J.

The plaintiff brought this action against the defendants to have Ms ownership in and right to the use, for irrigation and culinary purposes, of the water of Chase Springs established, and to restrain the defendants from interfering with the water, or with his dams, ditches, and means to convey the water for the purposes mentioned, and for, damages for interference by the defendants with the same prior to the institution of this suit. The defendants disclaim unlawful interference, claim such interference with their rights by the plaintiff, and ask that he be enjoined. Erom the evidence it appears that the springs in question and the lands of the parties are situate in Juab county, and that the plaintiff settled upon liis land in 1876, and, according to his testimony, used all the water of the springs and had peaceable possession thereof until 1901, when the defendants, who, it seems, had acquired the last of their land in 1897, commenced to interfere “with his use, and then and thereafter committed the acts upon which this suit is founded. At the trial the court adjudged the plaintiff to be entitled to all of the water of the Chase Springs, restrained the defendants from interfering with the same, or with the means provided for conveying it to the place of use, and awarded damages for the wrongful acts of the defendants in the sum of $350.’ Thereupon this appeal was prosecuted.

The appellants, among other things, contend that the decree of the court determining the rights of the plaintiff is broader than the allegations of the complaint, and therefore is erroneous. It is insisted that the complaint only alleges the ownership of Chase Spring; that this is a well-known and recognized spring, separate, apart, and distinct from the remainder of a group of springs known as “Chase Springsand that the decree, granting to the plaintiff, as it does, the Chase Springs, or the entire group, goes beyond the scope of the pleadings, and grants more than was involved in the suit. It is true that the term “Chase Spring” was used in several places in the complaint, but it is also true that the term “Chase Springs” was employed at other places in, it and in the prayer; and, reading all the paragraphs of the complaint, and construing the instrument as a whole, it seems clear that the subject-mater in controversy, and which was made the basis of this suit, was Chase Springs, and not alone Chase Spring. This is also clear from the proof. This point, therefore, is not well taken.

The appellants also complain that, under the circumstances of this case, the decree is so uncertain as not to be susceptible of an enforcement. The decree, so far as material, here reads:

“It is ordered, decreed, adjudged, and determined that the said plaintiff, Edward Elmer, is the owner and entitled to the possession, use and benefit of all the waters of said Chase Springs, together with the use of the dams, ditches, canals, flumes through which said waters flow, down to and oh the laud of the plaintiff as set forth in plaintiff’s complaint, all the year around, for culinary, domestic, and agricultural purposes.”

Counsel for appellants admit that upon its face the decree is sufficiently certain — it awarding all of the water of Chase Springs — and that, in the absence of complicating circumstances, no exception could be taken to the wording of the decree. Eut they insist that because waters from other sources, shown by the evidence, intermingle with the water covered by the decree, and flow in the channel from which the plaintiff diverts his water, the decree is uncertain, since it does not specify the amount to which the plaintiff is entitled, in second feet, or by some other known measurement. While it is always desirable and preferable in such cases to allot the water to the owners according to some known and definite measurement, still we do not think that the circumstances disclosed by the evidence in this instance are such as to render the decree vulnerable because of a failure to award the water according to the standard of such measurement. The decree, in specific terms, sets apart for the use of the plaintiff, and as belonging to him, all the water of the Chase Springs, and, in so far as appears from the evidence, it would not seem to be a very difficult task for the parties to ascertain and determine the amount of water which issues from those springs, they, as indicated by the proof, having a regular flow; and the amount so flowing from the springs will, under the decree, constitute the amount which the respondent has a right to divert from the channel of commingled waters. We are therefore of the opinion that, under the circumstances, the decree is sufficiently certain to render it valid and binding upon the parties. The holding herein is not in conflict with the doctrine of any of the cases cited by the appellants: We are also of the opinion that there is sufficient evidence to support the findings, and that the findings support the decree.

Entertaining the view that the decree is valid, we do not deem it important to discuss any of the other points presented, although they have not escaped our attention.

The judgment is affirmed, with costs.

McCARTY and STRATJP, JJ., concur.