North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co., 16 Utah 246

North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co.

16 Utah 246 | Utah | 1898

Zane, C. J.

(after stating the facts):

The plaintiff claims the legal right to take and use water from the Jordan & Salt Lake Surplus canal for irrigation and domestic purposes; that it has an interest in and right to the.Surplus canal, and to its waters, to that extent; and that, in view of the pleadings and evidence, the court should protect that right by a writ of injunction; while the Utah & Salt Lake Canal Company, the South Jordan Canal Company, and the North Jordan Irrigation Company, three of the defendants, deny that plaintiff has any interest in the Surplus canal, or any right to take water therefrom for irrigation or other purposes, and they claim the right to use the same canal to carry the seepage and surplus waters from the lands irrigated by them, from their canals, though its waters may be thereby so polluted and befouled by alkali or other substances as to render it unfit for irrigation or domestic purposes. It is plain that the Surplus *263canal cannot be used for both purposes. It cannot be used to carry water fit for irrigation, and water unfit for irrigation, at the same time. The use of tfie Surplus canal to carry water unfit for irrigation or domestic purposes is, in effect, an exclusive right to the use of it, so far as the use of it to carry water for irrigation or domestic purposes goes; and the right to use it to carry water for irrigation or domestic purposes, in effect, excludes the use of it to carry water unfit for irrigation or domestic purposes. The two rights are perfectly inconsistent, and cannot be enjoyed together.

This brings us to the question, has the plaintiff the right to take or use water from the Surplus canal for irrigation, culinary, or other domestic purposes? The plaintiff insists that the Surplus canal was constructed to relieve the Jordan river during freshets or high water; to carry a portion of its water and overflow water at such times, and as a drainage canal, to that extent; and also for the purposes of irrigation and domestic purposes; while the defendants claim it was constructed alone for the purpose of drainage to carry the seepage and surplus water from the lands irrigated by the defendant canal companies and others, as well as to relieve the Jordan river and adjacent lands submerged by it in times of freshets and high water. The understanding of various persons as to the object of the incorporation known as the Jordan & Salt Lake Surplus-Water Canal Company was received in evidence by the court below. While a special charter was not granted by the legislature of the late territory to the Jordan & Salt Lake Surplus-Water Canal Company, and it was incorporated under a general law, its articles of incorporation under that law were given the effect of a charter; and in them its purposes and powers must be found, — from them its franchise or franchises must be ascertained. Such a cor*264poration can only use such powers as are expressly mentioned in its charter, and such as may be necessary to execute those expressed. In the case of Thomas v. Railroad Co., 101 U. S. 71, the court said: ' “ Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others.” The object and business of the Jordan & Salt Lake Surplus-Water Canal Company, expressed in its charter, was “to construct [the canal described] for the purpose of diverting a portion of the said Jordan river from its present channel, and causing it to flow into ” Salt Lake at a point named, “ thereby preventing the western portion of Salt Lake City and the lands along the Jordan river from being submerged in times of high water, and making practicable the draining, irrigating, and cultivating of large tracts of land hitherto unavailable for agricultural purposes; and to this end the association may construct and maintain all necessary dams, head gates, flumes, and other means which may be necessary to control, regulate, and distribute said water for the purposes herein indicated.” The objects were to divert a portion of the waters of the river in times of high water, to prevent the western portion of the city from being submerged, and to make practicable the drainage and irrigation and cultivation for agricultural purposes of large tracts of land; and to those ends the company was empowered to construct and maintain all necessary dams, head gates, flumes, and other means which might be necessary to control, regulate, and distribute the waters of the canal so diverted from the Jordan river. It is apparent that the diversion of water and its distribution for irrigation were intended, as well as the diversion of water from the Jordan river at times *265of high water. Haring tbe power to construct and use its canal for tbe purpose of irrigation as well as drainage, tbe Surplus Canal Company was authorized to enter into tbe contract with tbe North Point Irrigation Company dated December 9, 1886, in which it granted to tbe company tbe right to take water from its canal for irrigation and domestic purposes, and to construct dams and gates to divert water into tbe canal of the North Point Irrigation Company to that end. This contract in writing of December 9,1886, referred to, ratified tbe verbal contract of February 27tli of tbe same year with tbe unincorporated company. While tbe name of tbe North Point Canal Company is used in tbe written contract, there is no doubt from tbe evidence that tbe North Point Irrigation Company, who bad succeeded to tbe property and rights of the unincorporated company, was intended, and we must hold that tbe contract was made with tbe incorporated company.

Defendants also insist that tbe execution of tbe contract of December 9,1886, by tbe Surplus-Water Company, was not proven by a preponderance of tbe evidence. While tbe evidence was conflicting, we are disposed to find that it was proven by a clear preponderance, and that it was executed by authority of both parties to it. It purports to be so signed. Two witnesses so state. It was acknowledged and delivered by tbe proper officers of tbe Surplus Company, duly filed for record, and recorded. Tbe North Point Irrigation Company on tbe faith of it built a new canal tbe distance of a mile, at considerable cost, thereby connecting their canal with the Surplus canal, constructed a head' gate according to tbe terms of tbe contract, contributed to tbe building of tbe Surplus canal, and took out water under tbe contract, whenever desired, until this suit was brought. After tbe contract was so signed, acknowl*266edged, delivered, accepted, and acted upon by both parties, it would be a breach of faith for the defendants to .avoid it now on the ground that it was not authorized and duly executed. After this contract or grant was so executed, acknowledged, delivered, and recorded, the Jordan'& Salt Lake Surplus-Water Canal Company transferred their canal to Salt Lake5 City and Salt Lake county, upon the condition that they would take the control and management of it for the uses and purposes for which it was constructed. It appears from the evidence in the record that the North Point Irrigation Company acquired its right to take water from the Surplus canal before its waters were rendered unfit for irrigation by the impure surplus and seepage water discharged through the drain ditch into it from Decker’s lake. But the canal company defendants claim that the seepage and surplus water from the lands irrigated by them flows naturally into White lake, a part of the Surplus canal. Undoubtedly a proprietor of higher land is entitled to the benefit of the natural flow therefrom, onto the lands of another, of surface or other water not brought there by artificial means. But, when water is brought onto the higher land by artificial means, the proprietor is not entitled to such natural flow onto the land of another, to his injury. The proprietors of higher lands have not the right to the natural flow of water brought onto their lands by artificial means. If natural forces alone bring water onto a man’s land, he may allow natural forces to take it off, though it may be deposited on the land of another, to his injury. Seepage from lands, caused by irrigation water brought in canals or other artificial ditches, cannot be regarded as natural seepage or drainage. It is not brought there alone by natural laws, as water from rain, snow, or springs is. Nor is the water in question conducted by gravitation, in drains or *267depressions made by natural forces, into tbe Surplus canab It appears that tbe seepage and surplus water complained of is conducted, in small, artificially constructed drains,, into the chain of lakes, and some of those are connected by such artificial ditches until it reaches Decker’s lake,, and from that a drain ditch nearly two miles long, of considerable width and several feet deep, — in one place as much as six feet, — was made and is maintained by the defendants, through which the waters so collepted in Decker’s lake'flow into the Surplus canal. The defendants have no right to conduct water through their canals onto lands irrigated by them, and then, by means of drain ditches, conduct the’seepage and surplus water therefrom,, rendered unfit for irrigation or domestic uses, into the Surplus canal, out of which the plaintiff has the' right to take water for useful purposes. Butler v. Peck, 16 Ohio St. 334; Gould, Waters, § 271; Livingston v. McDonald, 21 Ia. 160; Adams v. Walker, 34 Conn. 466; 1 Wood, Nuis., §§ 386, 387.

There is evidence that the waters of Decker’s lake, before the drain ditch complained of was constructed, when the water was high, sometimes overflowed its rim, and found its way into the Surplus canal. This, however, did not authorize the defendants to cut a drain ditch through the rim or intervening higher ground, and conduct such water as ’would not overflow into the Surplus canal. In Butler v. Peek, supra, the court said: “And it makes no difference that * * * in times of high water a portion of the waters of the basin would overflow its rim, and find their way, along a natural swale, to and upon the lands of the plaintiff below; for, as to those waters which naturally could not surmount nor penetrate the rim of the basin, but were compelled to pass off by evaporation, or remain where they were, the case is the same as if the basin had *268no outlet whatever.” Section 2785, Comp. Laws Utah 1888; declares: “ It shall be the duty of all persons using water from any natural source of supply, to provide suitable ditches for conveying surplus water again into the natural channel, or other place of use, to the satisfaction, or approval of the water commissioner.” It appears that the defendant canal companies divert water from the Jordan river into their canals, several miles above the point where the Surplus Canal Company connects with the same river (one of them as much as 17 miles above), and that they have a number of drain ditches, at different points, carrying the surplus and seepage water back into the river, the natural source of supply; but, when they came down to the chain of ponds or lakes, they constructed their drain ditches into them, and from them into the Surplus canal, whose waters the plaintiff uses for irrigation. They should have carried the seepage and surplus water complained of back into the common source, the Jordan river, as they do further up the river, as the statute contemplates, or to Salt Lake. Either way appears practicable, from the evidence.

The canal companies, defendants, also claim a prescriptive right to drain the water complained of into the Surplus canal. The evidence proves that the defendants, the canal companies, first constructed their drain ditch in the spring of 1886, but enlarged and extended it as late as 1892. And it appears that the plaintiff used water from the Surplus canal to the last-named year, when it was found to be unfit for irrigation, culinary, or other domestic use. At that time plaintiff’s officers and agents found it was so impure as to be altogether unfit for use. _ The drainage of pure water, or water Suitable for irrigation or other uses to which the plaintiff wished to put it, into the Surplus canal, was not inconsistent with plaintiff’s use of it *269for the purpose of irrigation or other use. So long as the plaintiff obtained water from the Surplus canal suitable for its purposes, it could make no difference whether it all came from the Jordan river, or other source. But as soon as seepage or surplus water was emptied into1 the canal, that rendered it unfit for use, then such drainage became inconsistent with plaintiff’s use of the same canal for irrigation purposes, and the canal companies’ use of it became exclusive. It has been held that adverse use of an easement will give title by prescription, when substantially the same, as to length of time, exclusiveness, acquiescence, and in other respects, as the adverse possession that will give title to real estate. If the adverse possession that will give title under the statute of limitations is required to be exclusive, continuous, and uninterrupted for seven, ten, or other number of years, under claim of right, with the knowledge and acquiescence of the owner, then the same facts must exist to give title in casé of an easement. The statute of limitations as to real estate in force in the late territory and in this state at the time it is claimed that canal companies, defendants, gained the right by prescription to drain their seepage and surplus water into the Surplus canal, required the existence and concurrence of facts that do not exist with respect to the alleged easement relied upon in this case. This is apparent from an examination of sections 8136, 3137, Comp. Laws Utah 1888. There is no analogy between the facts attending the alleged easement relied upon in this case, and the facts required to be shown in < order to gain title under the statute of limitations.

The canal companies also rely upon section'2780 of the same compilation, which declares that: “A right to the use of water for any useful purpose, such as for domestic purposes, irrigating lands, * * * is hereby recog*270nized and acknowledged to have vested and accrued as a •primary right to the extent of and reasonable necessity for such use thereof, under any of the following circumstances: * * (2) Whenever any person or persons shall have had the open, peaceable, uninterrupted and continuous use of water for a period of seven years.” The facts upon which the easement claimed by defendants must stand are not analogous to those giving the right to the use of water under the statute. The statute relates to the use of water for a useful purpose. The defendants claim a right to drain impure and befouled water into a canal whose waters are used for the purpose of drainage, irrigation, and domestic purposes. The right described by the statute is to take water for useful purposes. The right as described in the pleadings and evidence is to discharge impure water, unfit for use, into a canal whose waters are used for irrigation, culinary, and other domestic purposes. The facts upon which the canal companies rely to establish a right by prescription are not analogous to those required by either of the statutes above referred to. And they can only be applied as to time when analogous in other respects. Harkness v. Woodmansee, 7 Utah 227; 19 Am. & Eng. Enc. Law (1st. Ed.), p. 11.

The discharge of impure and foul water into a canal whose waters are used for irrigation or other useful purpose creates a nuisance. It appears from the evidenc.e in this case that the waters of the Surplus canal were rendered 'totally unfit for irrigation or domestic purposes by the seepage and surplus water from the land irrigated by defendants’ canals, discharged through their drain ditch from Decker’s lake. Section 3463 of the statutes (Comp. Laws Utah 1888) declares that: “Anything which is injurious to health, or indecent, or offensive to the *271senses, -or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is-lessened by the nuisance; and by the judgment the nuisance may be abated or enjoined, as well as damages recovered.” This section declares that anything which is injurious to health, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of property, is a nuisance. The mixing of alkali or mineral with water used for culinary or other domestic use, so that it cannot be used, is certainly offensive to the taste, injurious to health, and interferes with the enjoyment of life. And to befoul water used for irrigation, so that it kills vegetation, is an obstruction to the free use of property, and interferes with its enjoyment. A nuisance may be offensive to the sense of smell, sight, or hearing. In the prosecution of a business, offensive odors may be cast off, unusual and offensive noises may be given out, fluid substances may escape into a neighbor’s well, or one may do or cause to be done that which is offensive to the eye. In either case it may become a nuisance. Or the thing done or maintained may be injurious to property, and affect the free use of it, and in that way be a nuisance. Wood, Nuis. §§ 115, 116; Crane v. Winsor, 2 Utah 248; Black, Pom. Water Bights; § 76.

The use that will give a prescriptive right to maintain a private nuisance must be adverse, under a claim of right, uninterrupted, and continuous, for 20 years, with the knowledge and acquiescence of the party whose right is invaded. Campbell v. Seaman, 63 N. Y. 568; 1 Wood, Lim. (1st Ed.) § 182; Totel v. Bonnefoy (Ill. Sup.), 14 N. E. 687.

*272The general rule is that there can be no prescriptive right to maintain a public nuisance. Time will not sanctify it. Ashbrook v. Com., 1 Bush. 139; Wright v. Moore, 38 Ala. 593.

It appears from the evidence in the record that plaintiff’s canal was designed to irrigate various tracts of land owned by different persons, and that a number of them irrigated their lands from the canal for a time, and that stock drank of its waters. The further question is, did the canal companies create a public nuisance by draining the seepage and surplus water from the lands irrigated by them into the Surplus canal, in that way contaminating its waters v;ith salt and other substances, thus rendering it unfit for use? The statute (section 456G, Comp. Laws Utah 1888) declares that: “A public nuisance * * consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: (1) Annoys, injures, or endangers the comfort, repose, health, or safety of three or more persons. * * * (4) In any way renders three or more persons insecure in life, or the use of property.” It appears that various persons were prevented from cultivating or using their property, and the water upon which they relied to some extent for watering stock and for domestic purposes was made unfit for these purposes. It is true that considerable evidence was introduced on the trial tending to show that much of the land situated so that it could be irrigated from plaintiff’s canal is impregnated with alkali and salt, and unfit for agricultural purposes. But the evidence establishes the fact that crops grew on some of it prior to 1892, when irrigated with water from the plaintiff’s canal, received through the Surplus canal, from the Jordan river, before the drain ditch from Decker's lake was enlarged; and we think the evidence authorizes the inference that a *273great portion oí tbe land that could be leached and irrigated from plaintiff's canal would eventually become fit, for cultivation if irrigated alone with water from the Jordan river, or with water through the Surplus canal, without being mixed with the water from the drain ditch from Decker’s lake. There was also evidence tending to prove that the waters of White lake, through which the Surplus canal runs, contain a large per cent, of salt; that its waters are unfit for irrigation. That lake is not large, and from the evidence we are of the opinion that a portion of the waters of the Jordan river, running through it, would purify and render it fit for irrigation, when not contaminated with the seepage and surplus water from the lands irrigated by the canals of the defendants, and by waters of the chain of lakes discharged through the drain ditch from Decker’s lake.

The defendants finally urge that the findings of the court below should not be disregarded or set aside, and the decree based thereon reversed, unless it appears that they,-or some one or more of them, are so essentially and palpably erroneous as to induce a belief that such findings were induced by a mistake, or that the court was misled in some essential respect with respect to them. This appeal was taken on questions of fact as well as of law, and this court has recently held that in equity cases we may go behind the findings, and weigh all the evidence, and decide according to its preponderance. But wh«n the evidence as to a fact found to exist or not to exist is so evenly balanced, or the proof of it is so unsatisfactory, as to cause the mind to hesitate and pause as to the side on which it preponderates, or as to its existence or nonexistence, and to leave it in grave doubt, we are of the opinion the finding of the court below should remain. In *274the case of Whittaker v. Ferguson, 16 Utah 240, this court said: “ An appeal may be taken in equity cases on questions of fact as well as of law. The appellate court, therefore, by necessary implication, has the same jurisdiction and power in equity cases to determine questions of fact as of law, and may go behind the findings and decree of the trial court, consider all the evidence, decide on which side the preponderance thereof is, ascertain whether or not the proof justifies the findings and decree, and modify or set aside the findings and decree, and enter or direct such findings as the evidence, in the judgment of the appellate tribunal, may justify.” We hold that the court below erred in its findings, so far as they conflict with this opinion, and in granting the decree entered upon them. The decree appealed from is reversed, and the cause is remanded, with directions to the court below to set aside its findings so far as they conflict with this opinion, and to make additional findings in conformity with it, and to enter a decree perpetually enjoining the three canal companies named as defendants from draining the seepage or surplus water from the lands irrigated from their canals, or any or either of them, or the waters of the chain of lakes mentioned in the pleadings, through the drain ditch from Decker’s lake, also mentioned in the pleadings, or otherwise, into the Salt Lake Surplus-Water canal, or into White lake, a part of it, and ordering them to,fill up said drain ditch,.and ordering a writ of injunction to the same effect, against each of the defendants. Costs are awarded to the plaintiff against the defendants.

MiNER, J., and JohNson, District Judge, concur.