17 Utah 232 | Utah | 1898
This is an appeal from a decree dismissing appellants’ bill for an injunction, and awarding costs against them. The questions for decision arise upon the findings. The proof upon which they were made is not before us. Each of the respective parties to this suit irrigated land from some of the canals mentioned in the findings, and is represented by the irrigation or canal company that owns it. It appears from the findings that the defendants, The Riverdale Bench Canal Company, appropriated, in 1866, 18.67 second-feet of water (the second-foot being the
The question is presented: Does an appropriator of water from a natural source of supply, when there are-subsequent appropriators, who need the water, and actually have less than the quantity they appropriated, have' the right to divert it to uses other than those for which it was appropriated, by giving it away or wasting it? Section 2780, Comp. Laws Utah 1888, declares that “a' right to the use of water for any useful purpose, such as for
The Riverdale Bench Canal Company had no right to give the water it did not use, during the five days mentioned in the findings, to the Davis & Weber Canal Company, and that company had no right to use it. It belonged to the plaintiffs, in the order of their appropriations. Undoubtedly, the unappropriated waters of natural streams or other natural sources of supply may be appropriated by means of canals, ditches, reservoirs, or dams, to be used or sold for any useful purpose, and the quantity appropriated and named may be made sufficiently high for the greatest need of the appropriator; but so much as is not actually required and used at any time must go back to the common source or channel for subsequent appropriators, in the order of their rights. It appears from the findings that the Riverdale Bench Canal Company appropriated 18.67 second-feet of water to be taken from Weber river for the
We are of tbe opinion that tbe court erred in making its conclusions of law, and in entering a decree thereon 'denying a writ of injunction, and in dismissing plaintiffs’ complaint. Some of tbe findings of fact appear to be inconsistent, but tbe evidence is not before us. We therefore direct tbe court below to set aside its decree, conclusions of law, and findings of fact, and to make such consistent findings of fact as tbe evidence authorizes, and to state its conclusions of law therefrom, and enter a decree thereon in accordance with the principles announced in this opinion. Decree reversed.