79 P. 47 | Utah | 1904
alter stating the facts, delivered the opinion of the court.
Appellants’ first contention is that the waters in. question, at the time they were diverted from their natural channel by David Farley, appellants’ predecessor in interest, and conveyed by him onto what is now known as the “Argile Ranch,” were open to appro-' priation, and that the evidence shows that a lawful appropriation of the waters was made by Farley. There is a conflict in the evidence respecting the use, if any, that was made by respondent’s predecessor in interest of the waters for irrigation purposes prior to 1894. The court found: “(4) That in the year A. D. 1882 the plaintiff’s predecessor in title and interest, the said McDaniel, entered upon said lands and built a house thereon, fenced in a garden spot, and plowed three or four acres of ground for a garden; that he built a dam in a semicircular form around on the easterly side of the spring, about 25 to’ 30 feet long, and from 2 to 2 1-2 feet high; that by said dam all the waters of said spring were diverted and used upon the garden for the purpose of raising potatoes, cabbage, and lu-cerne, and were so continued to be diverted and used during the irrigating seasons of each year untilthe year 1887. ’ ’ There is a conflict in the evidence as to whether McDaniel used the water for the purpose of irrigation between 1882 and 1887, and to the extent as found, by the court, but there is abundant evidence to support the finding. The court not only confronted the witnesses while they were giving their testimony, and had an opportunity to observe their appearance and demeanor while testifying, but he made a personal examination of the spring, ditches and premises upon which it is claimed the water has been used. The court, in its oral decision, which is made a part of the record, made the following comment respecting the impressions created in the mind of the court respecting the credibility of certain witnesses, because of their appearance while on the stand and their manner of testi
The next contention of appellants is that, conceding respondent’s predecessor in interest appropriated the water, as found by the court, the evidence shows an abandonment of any and all right and title to- it for irrigation purposes that may have been acquired by such appropriation and use, and that in 1894 the water was again open to appropriation. The court found, and we think there is ample evidence to support the finding: “ (5) That in and after the year A. D. 1887 the plaintiff and its predecessor in interest diverted and used all the waters of said spring upon another portion of the plaintiff’s said lands and premises for the purpose of irrigating and making a meadow to • raise grass and pasturage for animals, and so continued to divert and use all of said waters for said purpose during several
The judgment is affirmed, with costs.