173 P. 705 | Utah | 1918
This case was argued and submitted at a former term of this court. Tbe court as then constituted, however, did not arrive at a decision in the ease, and it went over for reargument to the court as now constituted. Mr. Justice THURMAN was, however, disqualified to sit in the case by reason of haying been of counsel for some of the parties to the action, and for that reason Hon. P. C. EVANS, District Judge, was called in to sit with the other four members of the court. The case was again argued and submitted during the 1917 October term.
The plaintiff, a corporation, commenced this action in the district court of Salt Lake' County in February, 1907, to quiet title to a certain quantity of the waters of Big Cottonwood creek. Big Cottonwood creek is a stream of considerable importance having its source in the Wasatch Mountains to the east of Salt Lake Valley, flowing in a westerly direction a distance of approximately twenty-five miles, and finally emptying into the Jordan river, which empties into the Great Salt Lake. The waters of Big Cottonwood creek except in times of floods, have for many years all been appropriated and used for power, irrigation, and domestic purposes by the inhabitants of Salt Lake Valley. The plaintiff made all those who claim some rights to the waters of Big Cottonwood creek parties to the action. A large number of corporations and individuals, approximately 400 in all, were thus made defendants to the action. There were 115 separate answers filed to the complaint, and in some instances a considerable number of defendants joined in the same answer. Many of the answers in addition to matters of defense, also contained
A trial upon the issues presented by the several pleadings commenced on the 30th day of September, 1907, and the taking of testimony continued during the fall and winter months of -that year and until the spring of 1908. The case was submitted on the 18th day of April, 1908, and on the 6th day of June following the court rendered its decision upon all questions relating to the rights of the several claimants to divert and use the waters of Big Cottonwood creek during the irrigation season, that is, from. April 1st to October 1st of each year; but in rendering that decision the court expressly reserved all questions relating to the right to divert and use the waters of said creek during the nonirrigation season, to wit, from October 1st of one year to April 1st of the following year, and requested the several claimants to produce further evidence upon the latter question. Additional evidence was produced upon that question, most of which, however, was limited to the use of the water from Big Cottonwood creek after the action was commenced. The case, however, was finally submitted upon that question, and on the 24th day of December, 1913, the court filed its findings of fact and conclusions of law and entered a final decree in the action. The court, on most of the features, found in favor of Salt Lake City, and while modifying, and in some instances disallowing, the claims of many of the counterclaimants, the court nevertheless, to a large extent, found in their favor, and the plaintiff alone appeals from the decree.
While all the parties to the action were also made parties to
One of the principal questions presented, for decision arises as follows: Plaintiff claims that its predecessors in interest appropriated a certain quantity of water from Big Cottonwood creek for power purposes at a date anterior to the date that an appropriation was actually made by one of the ditches with which the city affected an exchange and that therefore plaintiff’s rights are prior and paramount, and that in diverting and using the water from said- ditch Salt Lake City is interfering Avith plaintiff’s rights. While, as we have seen, Salt Lake City contracted with the lower canal, yet the real controversy arises with what is called the upper canal, for the reason that the lower canal has succeeded to the rights of the upper canal to the extent at least that the Avater involved in this controversy is concerned. The allegations concerning plaintiff’s appropriation are quite general. They are as follows:
“That heretofore, in about the year 1856, the said plaintiff, and its predecessors in interest, appropriated 150 second feet of water from said Big Cottomvood creek,” etc.
The evidence upon the subject is equally general. Mr. Henry W. Brown, sixty-eight years of age at the time of the
“The survey part of the Gordon race (millrace) had been done in the early winter of ’55 and ’56. Construction was commenced in the fall of ’56. It was completed in the winter of ’56 and ’57. The Gardner mill (the mill in' question) commenced grinding in the winter of ’57 and ’58. ’ ’
The witness also testified that after the diverting dam was put in the millrace “took all the water that came down Big Cottonwood creek to that point, that low down. ’ ’ One of the principal questions in controversy is how much water in fact “came down Big Cottonwood creek to that point” — that is, to the intake or head of the millrace. Upon that question the testimony covers volumes. Indeed, the plaintiff, upon that and kindred subjects, produced eighty-two witnesses while the defendant city produced eighty-five. In addition to those there were many other witnesses. Each witness was cross-examined by at least three attorneys, and some were cross-examined by eight or ten. The oral evidence was supplemented by a great mass of documentary evidence, and the whole is thus so great in volume that we, except in particular instances, shall merely state our conclusions respecting the effect of the evidence. Counsel for Salt Lake City at the trial contended, and here contend, that the upper canal, to the rights of which the lower canal succeeded, was constructed and the water appropriated and diverted from Big Cottonwood creek before the appropriation was made by plaintiff’s predecessors for power purposes as before stated. 'Much evidence both for and against that contention was also produced. With regard to plaintiff’s rights the court found:
“That in the year A. D. 1856 the predecessors in interest and title of the plaintiff herein, the Progress Company, constructed a millrace, known as the Gordon race, for the purpose of taking water from the' Big Cottonwood creek. ’ ’
The court then proceeds to make findings regarding the use of the water, and the sources of plaintiff’s water supply,- and ends that part of the finding thus:
Upon the other hand, the court found that the upper canal was constructed in 1856. The precise question of which one, the millrace or the canal, was prior in time, the court apparently did not determine. Nor is that question, for the reasons we shall hereinafter discuss, of controlling influence here. We cannot go into the facts and circumstances upon that question in detail. Should we do so, it would require us to go far beyond the limits óf an ordinary opinion. We shall therefore limit the discussion to a few of the salient features. As before stated, Big Cottonwood creek is a very important stream to the inhabitants of Salt Lake Valley. Soon after the pioneers came to this valley, to wit, in 1847, they appropriated the waters of said stream and applied them to beneficial purposes. To that end they constructed a number of ditches by means of which they diverted the waters of said creek, and used the same to irrigate their lands, and also used it for other beneficial purposes. Up to and including the year 1856 there were thus constructed the following ditches and canals which diverted the water from the north' side of Big Cottonwood creek, to wit: Big Ditch, 1848; Walker Ditch, 1849; Hill Ditch, 1851; Farr & Harper Ditch, 1852; Newman Ditch, 1854; and Upper Canal, 1856. There were also ditches taken out to the south as follows: Tanner Ditch (three
Sixtieths
Butler Ditch.67
Brown & Sanford. 6.25
Upper Canal. 9.63
Thomas S. Newton.04
Tanner Ditch . 11.40
Green Ditch . 7.30
'Walker Ditch .'. 1.20
Farr & Harper.43
Knudsen & Bagley .;.03
Big Ditch . 15.75
Hill Ditch. 1.96
Lower Canal. 5.34
Further, that during the irrigation season, that is, between April 1st and October 1st of each year, when the water flow
Sixtieths
Butler . 50
Brown & Sanford. 3.60
Upper Canal . 10.50
Upper Ellison.70
Newman.30
Tanner . 13.21
Green . 5.30
Walker.32
Farr & Harper.50
Lower Canal.;. 5.80
Big Ditch .'. 17.10
Hill. 2.13
Bagley & Knudsen.04
Counsel for plaintiff very earnestly contend that the court erred in making the foregoing apportionments, and that in doing so invaded plaintiff’s rights. Prima facie there seems to be merit to the contention. When we keep in mind, however, the defenses- that were interposed by Salt Lake City, and give force and effect to the preponderating evidence, what seems to be a meritorious claim entirely disappears. Very briefly stated, the findings and decree are based upon substantially the following facts and circumstances: Prior to 1879 much difficulty arose respecting the equitable distribution of water among the several ditches during the low-water season and when the creek did not exceed what is known as the normal flow. While it was conceded at the trial that low water in the creek means a flow of fifty second feet, yet the evidence is conclusive that in many years the flow of the creek was reduced to considerably less than that amount. Indeed, there is evidence in the record that the flow at times was as low as fifteen second feet. The flow, however, varies greatly in each year, and in some years is much greater than in others, depending upon the amount of precipitation, the
“While I was water master, or at any other time, I never heard any one demand that water should flow down past the Hill Ditch dam to the Gordon race, or any other user below until the Progress Company (the plaintiff) made their claims. I never heard my father make such a claim, nor James Gordon or Mr. Cahoon. * * # I can say they did not make such a claim to me while I was water master. * * # I first heard a year ago last fall that the Progress Company made a claim to have water go down past the Hill Ditch.”
Practically the same statements, only in some instances
“I think the Gordon race is about the same size now as it always has been. In the summer time the race has been filled up full as it can carry ever since I have known it. I think it is less in the winter time, probably three-fourths full.”
Counsel conclude the evidence with the following statement:
“A great many witnesses testified as to the race being full of water all of the time,” that is, winter and summer.
Plaintiff’s witnesses also denied that a “tight” dam was maintained at the intake of the Big Ditch, as claimed hy Salt
It may be observed that the mere fact that plaintiff now only claims one-fourth of the flow during the low-water season, which would not exceed twelve and one-half second feet, or, in case the flow in the stream was less than fifty feet, would be less than that amount, alone shows that, if its millrace was running full at all seasons of the year as claimed by the witnesses, only a very small quantity of- that water came from the surface flow of Big Cottonwood creek. The district court was therefore justified in finding that none of the water from Big Cottonwood creek except the subsurface flow, all of which plaintiff still receives, ever reached down to plaintiff’s millrace. The question may, however, still be asked: Where did plaintiff obtain its water to operate its plant? As the court found, plaintiff constantly had at least two other sources of supply, namely, Little Green river and Spring creek. In addition thereto it also had the underflow from Big Cottonwood
“I think Spring creek has been increased in size at least ten times; * * * I think probably more than that since early years. I think Green river has increased maybe six or eight times the amount of water there was that flowed there in early years.”
There is also much testimony by others- to the same effect. True, the combined flow of Little Green river and Spring creek is less than plaintiff insists it is entitled to, but when the underflow from Big Cottonwood creek is considered in connection with the other two sources of supply, the court was justified in finding that the plaintiff obtained all the water to which it was entitled. It is also true that there is less water in Little Green river and Spring creek in the non-irrigation season than there is during the irrigation season. No doubt, like all other water users along one of our mountain streams, plaintiff’s .wants were not always supplied. This the manager conceded in his testimony. He said:
“We hardly ever have enough between October 1st and April 1st, that is, during the low-water season.”
There, however, still is another circumstance which shows that the plaintiff at no time had or used a specific quantity of water from Big Cottonwood creek. On the 9th day of August, 1904, the city obtained an option to purchase the water from the individual owners thereof through whom plaintiff now claims. Plaintiff’s manager, it seems, was not
It is, however, further insisted that immediately after Salt Lake City turned the water it obtained from the several ditches as before explained into its conduit plaintiff’s supply failed. In view of all the evidence, it seems the district court was not greatly impressed with that claim. Neither does it, in view of the whole record, impress us with compelling force. It is conceded by plaintiff’s counsel that none of the water that is diverted to the north of Big Cottonwood creek ever finds its way back into that creek or can in any way augment or affect plaintiff’s supply. It is likewise not disputed that Salt Lake City has turned as much water into the ditches as it took from the stream. Indeed, the water commissioner who is appointed under the statute to make the apportionments testified that he did not turn quite as much water into the conduit as Salt Lake City was entitled to under the exchange agreements. It is hard to conceive, therefore, how the mere fact of substituting canal water for Big Cottonwood creek water in those ditches, which in no way could affect the flow in Big Cottonwood creek after the diversion took place, can affect plaintiff’s supply. If no exchange had been made, the same quantity of water, and, according to the statements of the water commissioner, a little more, would have been diverted from Big Cottonwood creek by the three ditches with which the exchange was made as was diverted into the Salt Lake City conduit by the commissioner. The only difference, therefore, was that, instead of permitting the quantity of water diverted by the three ditches to flow down the creek to the headgates of those ditches, it was diverted farther up the stream, but the quantity diverted was, if anything, less than would have been diverted by the ditches themselves.
Nor is the court’s finding that the'plaintiff is entitled to 150 second feet of water flowing in Big Cottonwood creek below a certain point in that stream at all inconsistent. Indeed, it is quite consistent. There are at times more than 150 second feet of water flowing in Big Cottonwood creek as far down as the plaintiff’s race and beyond that point. Whenever that condition arises no one disputes the plaintiff’s right to its full 150 second feet. Whenever that amount does not flow down the creek to plaintiff’s race the plaintiff, nevertheless, is entitled to all that does flow down to that point, but no more, and unless the parties above that point take more than they are entitled to under the decree, plaintiff cannot legally complain.
There are one or two assignments relating to the admission of evidence. It is not necessary to discuss those, for the reason that, even though they were decided in plaintiff’s favor, it would not affect the result.
We desire to add that the case is one where persons, and especially those having an interest, can readily find something in the findings or decree to criticize and suggest changes. When, however, the whole case is viewed in the light of all of the facts and circumstances, it would be very difficult to make or to suggest findings and to formulate a decree which would more nearly reflect justice to all concerned than is the ease with respect to the findings and decree here. In our judgment the findings, conclusions, and decree of the
In conclusion we beg leave to express our appreciation of the thorough manner in which the evidence was abstracted and the briefs and arguments on both sides were presented. Counsel on both sides have greatly aided us in arriving at what, in our judgment, is a just result. While much can be said on both sides, yet, after a careful examination of the whole record, we are thoroughly convinced that the findings and decree of the district court are the result of a most careful and painstaking consideration of the whole case, and are in full accord with the preponderance of the evidence, and that the decree is as fair and just as under all the circumstances a decree could well be framed.
The judgment of the court below is therefore affirmed, at plaintiff’s costs.