81 P. 813 | Utah | 1905
Lead Opinion
The plaintiff brought this action to determine and quiet its right to the waters of Minnie Maud creek, a stream in Carbon county, Utah, and to enjoin the defendant from interfer
This appeal is from the judgment and decree. The appellant contends that two of the findings of fact are not supported by the evidence, and that the decree, being based on the findings of fact, is erroneous. The objectionable findings read as follows: “The defendant has, by adverse user of the waters of the Minnie Maud creek, acquired a right to the use of a certain quantity of the waters of said Minnie Maud creek, and that such user has been for more than seven years last past; that the preponderance of the evidence shows that defendant is entitled to a certain quantity of the waters of .said Minnie Maud creek by reason of defendant’s said adverse user of said waters.” “That the quantity of water acquired by such adverse user amounts to one-half of one second foot of water until the flow of the same, at the point of diversion, by the defendant, amounts to three second feet, and after adding the one-half second foot to said flow, defendant is entitled to one-fourth of a second foot in addition to the one-half second foot aforesaid.” The decree based upon these findings^ so far as material here, provides that the defendant “shall have and he entitled to the undisputed use and enjoyment of a one-half of one second foot of water” from the stream at the point of diversion by her, for agricultural and other beneficial uses, “at all seasons of the year, and at all times, for use on her lands on said Minnie Maud creek, until the flow of the waters” of the creek “shall reach a quantity equal to three second feet, and, after adding said one-half of one second foot to such flow, the defendant shall
Under the facts and circumstances disclosed by the evidence in the record, we are not disposed to disturb the decision of the lower court, the decree being manifestly warranted by the proof.
The judgment is affirmed, with costs.
Dissenting Opinion
(dissenting).
I dissent. The situation, in brief, is this: The grantors of plaintiff, in 1890, located on land along the lower portion of the stream, and appropriated from it all the low water, with which they irrigated and had under cultivation about 120 acres of land. The evidence shows without dispute that the ' stream in low-water seasons generally would irrigate not to exceed one-hundred acres, and that during the low-water seasons all the water of the stream was taken out by them in 1890 and 1891, and by means of ditches was conveyed upon their lands. At the commencement of the irrigation seasons, and at the time of the melting of snow, there generally was plenty of water for everybody, and in the spring was sufficient to irrigate about three-hundred acres. But for the two years prior to the commencement of the action there was water only sufficient to irrigate one-hundred acres. The flow of the stream is very erratic, depending upon the prevailing weather conditions previous to the irrigation season. In 1890 the defendant and her husband settled on lands along the upper portion of the stream, but took no'water from it until 1891,
“When there is sufficient water in the river to supply all parties, there can be no such thing as ad-. verse use of the water to start the statute of limitations running. Each is entitled to the use of the water, and it is only when the water becomes so scarce that all of the parties cannot be supplied,*233 and that one appropriator takes water which by priority belongs to another appropriator, that there is an adverse use. The statute commences to run from the time when such adverse use is made of the water, the adverse use being only of that water which the prior party is entitled to. When there is a sufficiency of water in the river, the prior appropriator is not entitled to the water used by the subsequent appropriator, and the subsequent appropriator can use under his appropriation without being an adverse user.” (Egan et al. v. Estrada (Ariz.), 56 Pasc. 721; Anaheim Water Co. v. Semitropic Water Co. (Cal.), 30 Pac. 623; American Co. v. Bradford, 27 Cal. 361; Land & Water Co. v. Hancock (Cal.), 24 Pac. 645, 20 Am. St. Rep. 217; Faulkner v. Rondoni (Cal.), 37 Pac. 883; Church v. Stillwell (Colo. App.), 54 Pac. 395; 3 Farnham, Water and Water Rights, p. 2106.)
The evidence fails to show such a use of the water on the part of the defendant. If anything, it shows the contrary. When, therefore, the court found that the defendant, by an adverse use, acquired the right to the use of a certain quantity of the waters of the stream, it lacks support from the evidence.
Nor can I agree to an affirmance of the judgment on the theory that the defendant appropriated the water awarded to her by the decree. The court below found that the defendant’s right to the water was acquired by an adverse use, and not otherwise. No finding at all was made as to any appropriation of water by the defendant, or .as to any right acquired by her from an appropriation. The judgment rests alone upon the finding of an adverse user. However, on the theory of an appropriation by her, the evidence most clearly shows that she did not make any appropriation of the waters of the stream in low-water season . For the evidence, without dispute, shows that generally in low-water seasons the stream was sufficient to irrigate only one hum
I think this judgment is wrong, and ought to be reversed, and tbe case remanded for new trial.