178 P. 760 | Utah | 1919
The plaintiff commenced this action against the defendant's to qniet the title to certain water, and to enjoin the defendants from using the same and interfering therewith. The defendants denied plaintiff’s claims to the water in question, and as a counterclaim, alleged that they were the owners of a large portion of the water in question. It is not necessary to set forth the pleadings.
The evidence produced at the trial is very voluminous, covering nearly 750 typewritten pages of legal cap, all of which we have carefully read. In view of the great mass of evidence, therefore, we cannot set it forth in this opinion even in condensed form. We shall, therefore, do no more than to state the controlling facts in the course of the opinion.
The case in some of its aspects is unique in that neither the plaintiff nor the defendants, nor the predecessors in interest of either, have based or now base the right to the use of the water in question otherwise than by having used the same for useful and beneficial purposes; that is, no formal appropriation, as since that time has been usual and customary, was ever made.
The plaintiff claims, and he produced much evidence tending to support his claim, that his predecessors in interest, through whom he claims, obtained a prior right in the year 1895, to the use of the water in question to irrigate the land which he owns and upon which he lives; that he succeeded to the rights of his predecessors by purchase in the year 1900, and that said water, during all of the several years since 1895, has been used on the land aforesaid for irrigation and domestic purposes. We remark that while, as hereinbefore stated, the defendants ’ land lies near the head of the stream, yet they do not claim all of the water which reaches the plaintiff’s land lower down the stream. This is due to the fact that
While defendants’ counsel have assigned a number of errors which relate to the rulings of the court during the trial, yet. for the reasons hereinafter stated, there are really no questions of law involved on this appeal. The real controversy arises with respect to questions of fact.
The findings of fact go into great detail and are too long to be set forth in this opinion. It must suffice to say that the court in effect found the issues in favor of the plaintiff and adjudged him to be entitled to all the water of Meadow creek, with the exception that the defendants are permitted to use the water flowing in said creek as it passes through or over their land for a period of twenty-four hours in each week. The court, however, required the use of the said water upon particular parcels of land which are described in the decree and which amount to 24.79 acres. Defendants complain of that portion of the findings and decree; and contend that the findings are not supported by the evidence. While the evidence relating to the quantity of land upon which the defendants’ predecessors in interest used water and the time when the same was first used is conflicting, yet there is no doubt that the predecessors of the defendants and through whom they claim did use a portion of the water to irrigate some meadow land at a time prior to the time when plaintiff’s predecessors commenced the use of the water on his land lying at the mouth of the canyon below defendants ’ land. The evidence is, however, to the effect that the defendants’ land which lies on both sides of Meadow creek is not adapted for general farming, but that some of it is adapted for pasture and the production of hay for which, purpose it has been used for many years. The evidence also shows that small quantities of grain have been raised on defendants’ land, and that at least a portion of .the water at different times has been used by de-' fendants’ predecessors in interest to irrigate some land bordering on said creek for the purpose of producing hay, a quantity of which was produced on said land each year since the 80’s. There is a dispute, however, respecting the quantity of water that was used for that purpose, and the amount of
There are some facts in this case which are clearly established. They are, that while the water that is claimed by both the plaintiff and the defendants in a broad sense comes from a common source, yet a portion thereof which reaches plaintiff and which is used by him to irrigate his land comes to the surface below defendants’' land, and hence is not and cannot be used by defendants on their land; that after plaintiff’s predecessors through whom he claims first commenced to use the water, he, from time to time, increased the area of irrigated land, and has thus also increased the quantity of water he used, all of which is also true respecting the defendants’ use of the water; that as to a portion of the water now claimed by plaintiff his right to its use is prior and superior to defendants’ rights, and as to a portion of the water claimed by defendants their rights are prior and superior to the plaintiff’s rights; that plaintiff’s land is better adapted for general farming purposes, and without irrigation is nonproductive, while only a small portion of defendants’ land is adapted for pasture and the production of hay while the greater part is adapted for grazing purposes merely; that a small part of defendants ’ hay land is wet and needs no great amount of water for irrigation to produce hay; that the water in, this case is of
It is further contended that the district court erred in requiring defendants to use at least a part of the water awarded to them upon land to which the title still remains in the government. In view, however, that the findings and judgment will be modified respecting defendants’ right to use the water during each period of time as before stated, and the defendants will be given the right to use the water at such place or places as to them may be deemed best, nothing further need be said respecting that assignment.
“Where a canso is tried by tho court, without a jury, the judgment will not be reversed for the admission of incompetent evidence if there is sufficient competent evidence to sustain tho finding.”
For the reasons stated the findings of fact, conclusions of law, and decree must be, and they are hereby directed to be, modified in the particulars pointed out in the opinion. The cause is therefore remanded to the district court of Box Elder County, with directions to modify its findings of fact, conclusions of law, and decree, so as to make them conform to the terms hereinbefore stated. In all other respects the findings, conclusions of law, and decree are affirmed, and will remain unmodified.