108 P. 1118 | Utah | 1910
This action was brought by appellant, as administrator, of the estate of one John Patterson, deceased, to quiet title to the use of the water flowing from certain springs known as the Potsum Pah springs, situate in Pine Grove Valley, Beaver County, Utah.
The facts which we deem material, as developed at the trial, in substance, are: That the land on which the springs in question are situated is arid, and up to the time that this action was commenced continued to be unsurveyed public domain. In the year 1896 one Thomas McCune filed a desert entry on the lands surrounding the said springs, constructed one or two small reservoirs to hold the waters flowing therefrom, and thereafter placed troughs at the springs, conducted the water into them, and used the same to water live stock; that said desert entry was contested, and in August, 1903, was duly canceled by the local United States Land Office, and the action of the local office was approved by the Commissioner of the General Land Office at Washington, I). C., on the 19th day of January, 1905, and said McCune by said decision forfeited all rights under his desert entry aforesaid. In March, 1901, and while the desert entry of said McCune was still, prima facie at least, in force, but when said land and springs were seemingly abandoned and the water flowing from said springs was not being used by any one except as hereinafter stated, the deceased, John Patterson, took possession of the lands surrounding the springs and of the springs, erected a log cabin 16x14 feet near said springs and constructed a corral, and fenced in a few acres of the land near the springs, and, in connection with the improvements aforesaid, he also cleaned out the reservoirs constructed by said McCune. Said Patterson died on the 4th day of January, 1905. Prom March, 1901, to the time of his death, he maintained the corral and fences aforesaid, and a, portion of the time during each year stayed
Upon substantially the foregoing facts, the court found in favor of the defendant, and found that the said John Patterson, deceased, had acquired no rights to the use of the water of said springs or any part thereof, and adjudged the right to the use of the water thereof to be in the defendant. The administrator appeals from the court’s findings and judgment.
Counsel for appellant urge that, in view of the undisputed facts, the court erred in its findings and judgment in so far as it adjudged that the plaintiff, as the administrator of the estate of said John Patterson, deceased, was not entitled to the use of the water of said springs, and also in its findings and judgment that said defendant was entitled to the use of said water. It seems to us that the court laid too much stress upon the question of the right of possession or ownership of the lands surrounding the springs. Eyen if it be assumed that some one of the different parties who at some time claimed some rights in said land at one time had some equitable right or title thereto, yet the evidence is conclusive that no one ever used, or attempted to use, the water on said land for irrigation or for the purpose of producing crops of any hind thereon, not even grass for pasture. In view of this fact, any one claiming the legal right to use said water had to base that right upon a use and for a purpose other than irrigation. While the evidence shows that both the sheep men and the cattle men, among whom was the defendant, used the water of said springs for many years
In the California cases some distinction is made on account of riparian rights, which distinction, however, does not militate against or affect the principle just stated. The deceased, therefore, although he may have been a trespasser on the land, still had a right to appropriate and use the water from the springs in his cabin for culinary purposes, and for the purpose of watering his team and saddle horse. That he used a certain amount of water from said springs during a portion of each year from March, 1901, until- the^time of his death, January 4, 1905, no one disputes, and no one seems to have questioned his right to do so. Is there any doubt that the use the deceased made of the water was a beneficial use within the meaning of that term ? We think
In view of all the facts and circumstances, we are of the opinion, therefore, that the appellant as administrator is entitled to a specific finding with respect to the quantity or proportion of the water from the springs that the deceased used for culinary purposes and to water his team and saddle horse, and the length of time that the water was used for those purposes each year from 1901 to 1905, and, when said quantity and time of use is ascertained, the appellant is entitled to a decree awarding him for the benefit of said estate the quantity of water so found for the time aforesaid. If it be found that the appellant has no right to use the water for the purposes aforesaid, or for any beneficial purpose, on the land surrounding the said springs, then he may, nevertheless, use the water in the quantity that it is found the deceased used it, and for the time that he used it, by diverting it to some other place if appellant can do so. (Smith v. Logan, supra; Santa Paula Waterworks v. Peralta, supra.) If appellant, however, has no right to use the water at or near the springs as the deceased used it, and if he will not divert and use it elsewhere or dispose of it to some one who will use the same, then appellant at some time in the future may be deemed to have abandoned the right to the use of the water the same as any one else would be deemed to have abandoned rights by nonuser.
From what has been said it follows that the district court erred in its application of the law to the facts of this case. In view of the unsatisfactory state of the evidence upon the two questions, namely, the amount of water that the deceased, Patterson, used for culinary purposes and for his team and saddle horse, and the season or the length of time he so used it during each year, we are unable either to direct