116 P. 1024 | Utah | 1911
Lead Opinion
This suit involves the ownership and use .of the waters of certain springs, called Munsee’s Springs, situate near the desert, in Tooele County. The plaintiff is the owner of a tract of land consisting of about 120 acres; the defendants the owners of about 160 acres adjoining. The springs are about three miles from the plaintiff’s land and a little farther from the defendants’ land. It was alleged by the plaintiff that at the time of the filing of his complaint he was, and for more than thirteen years prior thereto he had been, the owner
Evidence was introduced on behalf of the plaintiff tending to show that in the year 1895, he settled upon his land and built a house, a stable, and a corral. The waters of the springs, as testified to by some of the witnesses, consisted of about a one-half second-foot flow; others testified that they were sufficient to fill a good plow furrow, and in high water time ran down the wash. In 1895 the plaintiff constructed a ditch from the wash to his land, and used the water upon it for irrigation. Later he constructed a ditch from the springs to a lake and from there to his lands. -Experiencing some difficulty in having the waters reach his lands in that manner, he constructed another ditch direct from the springs to his lands, which was completed in 1899. Between 1895 and 1904, prior to the time the defendants claimed an interest in the water, the plaintiff also used the waters of the springs to irrigate some lands near the lake, about two miles from his lands, upon which he raised some potatoes, and he also irrigated seven or eight acres of the land subsequently acquired by the defendants, upon which he also raised some crops. He also cultivated and raised crops on about eight acres of the lands owned by him, which were irrigated by the waters of the springs, and also used such waters on a meadow on his lands, consisting of about thirty acres, and from which he took from twenty to thirty tons of hay annually; and he also' watered
Evidence was adduced on behalf of the defendants tending to show that in the fall of 1903, or spring of 1904, they entered upon their lands and built a house and a corral, and in the spring of 1904 they constructed a ditch from their lands to the wash, by means of which they diverted the waters of the springs and used them upon their lands; that in 1904 and 1905, they had' cultivated and irrigated about two acres of ground, about ten acres in 1905, and twelve or fourteen acres in 1907, and that from 1904 to 1907 they had used all the waters of the springs on their lands, except when turned off and interfered with by the plaintiff. The defendants' further testified that in 1904, when their ditch was constructed and the waters diverted by them, the waters of the springs were then running to waste down the wash, and that there were no indications of any ditch running from the wash or from the springs to plaintiff’s lands, and that there was not anything to show that the waters of the springs had ever been used on plaintiff’s lands. Other witnesses on behalf of the defendants testified that they saw no ditch running from the wash orfrom the springs to plaintiff’s lands. It was also testified to, on behalf of the defendants, that there were a number of springs, variously estimated at from four or five to eleven, on the lands of the plaintiff, and that his meadow was watered from such springs, and not from the Munsee Springs, and that his meadow was low and wet and needed draining, and that the ground cultivated by .the plaintiff on his lands consisted of only about one acre, and was watered, not from the waters of the Munsee Springs, but from a spring or springs on his own lands.. The plaintiff and other witnesses testified that the ground cultivated by him on his land, and some of the meadow lands, were 'so situated that they could not be watered from the springs on his lands, and that the lands cultivated by
That the plaintiff, prior to 1903, had constructed ditches about the Munsee Springs, some of which were a quarter to á half a mile in length, and a ditch or ditches running from the spring's down the wash and towards the plaintiff’s lands, and that he had diverted the waters of the springs and used them on lands cultivated by him and upon which he raised crops near the labe, and on lands subsequently acquired by the defendants, is shown by the evidence without any substantial conflict. As to whether the plaintiff, prior to 1904, had extended the ditches to his lands, and whether, prior to that time, he has used any of the waters of the Munsee Springs on lands then owned by him, the evidence is in conflict. In that respect the plaintiff, and other witnesses on his behalf, testified that they ploughed and dug ditches from the springs and from the lake running to< plaintiff’s lands, by means of which the waters of the Munsee Springs were, prior to 1904, conveyed to and used upon the lands then owned by the plaintiff. Defendants and their witnesses testified that in. 1904 there were no indications of any ditch.running from the wash or from the springs to plaintiff’s lands. Some of them testified that there then were no such ditches; others merely testified that as they casually passed over the country they saw no such ditches. The defendants, however, and other witnesses on their behalf, who also' had knowledge of the facts, testified that in 1904, and before the defendants constructed their ditch, there were indications of a ditch or ditches about the springs, and indications that land near there, and some ground on the lands subsequently acquired by the defendants, had been cultivated. By whom the ditches had been made and the ground cultivated, they testified they did not know.
The court found that in the year 1904 .the defendants, for the purpose of irrigating their lands and for the watering of live stock, and for culinary purposes, constructed a ditch from their lands to “those certain natural springs of water which were then unappropriated waters, known as Muncee’s
The plaintiff on appeal, among other things, urges that all the material facts presented by the issues were not found; that the finding that the plaintiff bad no right, title, or interest in or to the waters was a mere conclusion; and that the finding that the allegations of bis complaint contrary to the findings were untrue was uncertain and too
Counsel for defendants, however, urge with some force that the specific findings made by the court relating to the. affirmative allegations in the answer necessarily negative the allegations of the complaint. It undoubtedly is true that, where issues are not expressly found, but are necessarily negatived by other specific findings of fact, or
We think, however, the principle is, not applicable to the case in hand. The plaintiff and the defendants were both claimants and actors. The issues tendered by each were not in general terms. The pleadings were so framed that the controversy turned upon particular facts which, in order to conform to the issues presented, required specific
In this connection, it is urged that the statement in the findings that the defendants, in 1904, dug a ditch from “those certain natural waters,” Munsee’s Springs, "then unappropriated waters ” necessarily negatived a prior appropriation of them by the plaintiff. That depends altogether upon what ■ view the court took of what constituted an appropriation, and therein lies the vice of such a finding, when viewed in the light of the pleadings and the evidence. If the court took the view that to constitute a valid appropriation it was necessary for the plaintiff to have used the waters on lands owned by him, or in which he had an interest, then the court misconceived the law. If by that finding the court meant that the plaintiff, prior to 1904, had constructed no ditch and had diverted none of the waters of the springs for' a beneficial purpose, then we unhesitatingly say that the finding is contrary to the evidence. If by such a finding it was meant that the’ plaintiff, prior to 1904, had constructed a ditch or ditches, by means of which he had diverted and used the waters of the springs, but thereafter and before 1904 had abandoned them, then we say no such issue was presented. Again, if from such a finding we are to understand that the plaintiff had constructed a ditch or ditches, but not running to his land, or that he had not used the waters of the springs on his land, or that his land was of such a character that it did not require irrigation, or that he otherwise had not made a beneficial use of the waters, then we are compelled to reach such results from mere deductions and inferences, coupled with the uncertainty of not knowing which of such results was deduced or inferred, or which of such facts found by the trial court.
The trial court, in an equity, as well as in a law, case, should itself assume the labor of making specific findings of fact which respond to and dispose of the material issues; and in an equity case, where that has not been done, we may reverse and remand, or we may ourselves on the record determine the facts and direct a judgment to be entered
The judgment of the court below is therefore reversed, and the case remanded to the trial court to make findings of fact, finding the issues presented by the complaint in favor of the plaintiff and against the defendants on their affirmative allegations that the waters, when diverted and used by them, were then unappropriated public waters; and to render a judgment in favor of the plaintiff and against the defendants as prayed for in the complaint, awarding the right and title to the use of the waters in question to the plaintiff, and restraining the defendants from asserting any claim or right therein
Rehearing
ON Application eoe Reheabing.
An application for a rehearing is made. We see no reason for granting it. We axe well satisfied with the conclusion reached by us reversing the judgment. We are not so well satisfied with the order made by us directing a judgment for the appellant. Some matters may be involved in such a judgment which may not have been fully litigated
Let the remittitur, on application, go down at once.
