271 F. 157 | 8th Cir. | 1921
It is admitted by the plaintiff in its brief that the evidence establishes that—
“The defendants’ predecessors in interest had, more than 25 years before the driving of the tunnel, appropriated all of the water flowing in Snake creek and at some considerable distance below the portal of the tunnel, and diverted the water on to their lands for the purpose of irrigation. These lands are arid, and do not bear any crops unless irrigated, and without water were of little or no value.”
. “Tbe burden of proof is upon the one who has discovered certain subterranean water and claiming the same to show that such water is, in fact, ‘developed water.’ Therefore, whoever asserts that he is entitled to the exclusive use of water by reason of his having discovered and ‘developed’ the same must assure the court, ,by a preponderance of the evidence, that he is not intercepting the tributaries of the main stream or other body to the waters of which others are entitled.” Mountain Lake Mining Co. v. Midway Irrigation Co., 47 Utah, 346, 360, 149 Pac. 929, 934.
This was reaffirmed in Bastian v. Nebeker, 49 Utah, 390, 163 Pac. 1092. The courts of last resort in other mountain states, where conditions are similar to those prevailing in the state of Utah, have reached
This rule seems more rational and logical than the opposite rule, to wit: That the burden is upon the prior appropriators to show that subterranean waters drawn by another by means of a tunnel from the ground that might have constituted the sources of the stream, were in fact the source thereof. Those who run tunnels into the mountain and gather water in this way, near the sources of streams, have better means of knowledge whether they are gathering water tributary to the streams than do prior appropriators down the streams, who are cultivating their lands and have nothing to do with the driving of such tunnels, and it would be nn irrational and burdensome rule, probably destructive of their rights, to require such prior appropriators to establish the fact in the first instance, that the owners of the tunnel intercepted the tributaries to the stream.
“I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself, to apply a rule founded on a particular reason, to a case, when that reason utterly fails.”
This principle of law was in effect applied in The Genesee Chief, 53 U. S. (12 How.) 443, 13 L. Ed. 1058, when The Thomas Jefferson, 23 U. S. (10 Wheat.) 428, 6 L. Ed. 358, and The Steamboat Orleans, 36 U. S. (11 Pet.) 175, 9 L. Ed. 677, were in an opinion delivered by Chief Justice Taney overruled. In Jennings v. Kirk, 98 U. S. 453, 458, 25 L. Ed. 240, the rules governing water rights, established by miners, which disregarded the common law respecting the rights of riparian owners, were upheld. In Atchison v. Peterson, 87 U. S. (20 Wall.) 507, 22 L. Ed. 414, quoting from the syllabus, it was held that—
“On ' the mineral lands of the public domain in the Pacific states and territories, the doctrines of the common law, declaratory of the rights of riparian proprietors respecting the use of running waters, are inapplicable, or applicable only in a very limited extent to the necessities of miners, and inadequate to their protection; their prior appropriation gives the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is applied.”
The conditions in the Western mountain states, where the lands are practically arid, and therefore agricultural products can only be raised by the aid of irrigation, differ materially from those prevailing in England and therefore, unless” the Supreme Court of Utah has adopted the so-called English rule, we do not deem it a proper rule to be applied in that state. It has been so held by the courts of the states where similar conditions prevail as in the state of Utah. Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35; McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849; Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755; Comstock v. Ramsay, 55 Colo. 244, 133 Pac. 1107; Wiel on Water Rights (3d Ed.) §§ 1063 and 1066; 2 Kinney on Water Rights, §§ 1193, 1194.
The rulings of the Supreme Court of Utah are not harmonious. The earliest decisions seem to have favored the English rule, although they were not always harmonious. But in its latest decisions that court has adopted the American rule, although not so stated in express terms, and in effect overruling Roberts v. Gribble, 43 Utah, 411, 134 Pac. 1014, a case much relied on by counsel for plaintiff.
“In Gams v. Rollins * * * it was held, that the run-oil;, waste and seepage from irrigation are not subject to appropriation as against the owner of the land irrigated who desires to recapture it and apply it on his own land. In Roberts v. Gribble * * * the water in dispute resulted mainly from the irrigation of lands in the vicinity. Defendant’s land*164 became swampy. He put in a drain system, collected the water, and used it upon his own land. In doing so he deprived plaintiff of its use.”
The court then said:
“The principle underlying these two cases seems to be that waste and seepage waters from artificial irrigation constitute an artificial, rather than a natural, source of supply, and therefore are not the subject of appropriation. This principle is undoubtedly correct as applied to the facts in the Garns Case, and the Roberts-Gribble Case relies on the Garns Case as authority. If it goes no farther, we are of the opinion its rests upon a firm foundation.”
In Rasmussen v. Moroni Irrigation Co. (Utah) 189 Pac. 572, the previous decisions of the court were relied on by appellant. The court, referring to Stookey v. Green, supra, said:
“All of the foregoing decisions, except the two in which the Herriman Irrigation Company was a party, are considered and reviewed in the recent case of Stookey v. Green. * * * The legal effect of those decisions and the principles upon which they rest are so clearly and ably stated by Mr. Justice Thurman that it would be a work of supererogation on the part ot the writer to attempt to further review and statement.”
The court, in referring to Roberts v. Gribble, says:
“The only case in which it might be said that the facts and conditions somewhat resemble those of the case at bar is the case of Roberts v. Gribble, supra. The decision in that case is, however, squarely based upon the case of Garns v. Rollins, a.nd the facts in the latter case necessarily take the Roberts decision entirely outside of the principles which must control the ease at bar. If, however, the case of Roberts v. Gribble shall be construed so as to make it applicable to the undisputed facts of the case at bar, then the decision in that ease must be distinguished, and, if necessary, modified, so as to limit the same to the facts in the case of Garns v. Rollins, which is the sole basis of the decision of the Roberts v. Gribble Case.”
The court then adopts as the correct principle the rule found in 2 Kinney, Irr. and Water Rights, §§ 1193 and 1194, which is quoted in full and reproduced here:
“It was not until the more recent scientific investigations, before mentioned, as to the movements of underground waters through the soil, that these percolating waters tributary to surface waters were recognized as belonging to any particular class, or that any rights could be acquired in them other than the rights which could be acquired to the soil itself, through which they found their way, of which soil, under the prevailing common-law rule, they were considered component parts. But, by these geological and topographical investigations made by the government and others, it has been proven in many instances that waters percolating through the soil of watersheds were not only the sources of supply, but the only source of supply of certain streams and other surface bodies of water. It being proven absolutely that these pex’colating waters physically are directly tributary to these streams, the law has kept pace with these scientific investigations proving this fact; and therefore it follows that in law they should be, and in many jurisdictions are, dealt with and treated as tributax’y water’s. And, where rights to the waters of the stream itself have been once acquired, by appropriation or otherwise, it is unlawful for persons owning land box’dering on the stream to intercept the waters percolating thr.ough them oxx their way to the stream, and apply it to any use other than its reasonable use upon the land upon which it is taken, if he thereby diminishes the flow of the stream to the damage of those having rights therein. Therefore this rule modifies the common-law rule that the owner of the land is also the owner of all the water found percolating as a part of the soil itself, and that*165 he may use and dispose of it as lie sees fit, to the extent that he may only use these waters so percolating through his land, subject: First, to the rights of others to the water ilowing in the stream which this water augments, upon the same principle as though this water was a part of the stream itself. * * * ”
In the concluding part of the opinion the court said:
“The fact that the water in question may lie percolating or seepage, as contradistinguished from the water ilowing in known and defined underground channels, does not alter the case. The controlling question always is: Was the water in question appropriated and put to beneficial use btf others before the interception and attempted appropriation thereof by the landowner?” (The italics are ours.)
See, also, McCliutock v. Hudson, 141 Cal. 275, 74 Pac. 849, a tunnel case, in which the facts are much like those in the instant case. In this connection it is proper to state that these two opinions were rendered after the decision in this case was filed in the court below.
The water in controversy is unconnected with plaintiff’s use of the tunnel—in fact, is not used for the plaintiff’s own use, its business being mining, and not farming—and therefore it cannot be said that selling it is a reasonable, or, so far as its business is affected, a beneficial, use. See Mr. Justice Baskin’s concurring opinion in Herriman Irr. Co. v. Keel, 25 Utah, 96, 124, 69 Pac. 719, on that point. To sell it to other irrigation companies cannot he said to be a reasonable and beneficial use for its business, when the effect of it is, as the evidence in the case , at bar clearly establishes, that, it is destructive of defendants’ rights to use the water of Snake creek, which they had, 25 years before the driving of the tunnel by the plaintiff, appropriated, and without it their lands would become absolutely valueless.
The decree in favor of the plaintiff must be reversed, and a decree entered dismissing its complaint. On the counterclaim, defendants are entitled to an injunction enjoining plaintiff from asserting any claim to the surplus waters, ilowing from the portals of the mine into Snake creek, not wanted for operating its mines, and quieting defendants’ title thereto. The prayer for an injunction enjoining the plaintiff from extending its tunnel further in the mountain will be denied.