151 P. 46 | Utah | 1915
This is a contempt proceeding commenced against D. A. Mitchell. In the affidavit initiating the proceeding it is, in
“Mr. Whitecotton: D. A. Mitchell, if your honor please, is the one served and making this stipulation. We agree and stipulate that the matter’s set out in the affidavit filed for this order, as relates to the entering of the decree in 1899, and the terms therein specified, are as alleged in the affidavit; and we admit that at about the time stated we diverted from the headwaters of Spanish Fork River, or one of the tributaries of Spanish Fork River, water which we used for irrigation. We deny any contempt of the decree of this court, or any intention to disregard the court’s decree, and in justification of our acts say that prior to this controversy now before the court, these defendants herein cited to appear purchased from the United States Reclamation service seven second feet,
“It is further agreed by the parties that the quantity of water taken out by us is not in excess of that which we furnish to the plaintiffs in this case in the river. It is also stipulated that this river is a natural channel, a natural waterway, and that for every drop of water we have taken out higher up, we supply an equal amount, in respect to both quantity and quality below. Upon that state of facts the respondent rests his defense and asks to be hence dismissed with costs.
“Mr. Hansoii: Now, if the court please, there are one or two other stipulations that we would like to add to what Brother Whiteeotton stated. The questions are these: That the waters which are leased by the United States government were leased to one Lant and Reese, of Payson, who attempted to divert that water through the Salem canal, they sold it to certain defendants, including this defendant, D. A. Mitchell.
“Mr. Whiteeotton: We will accept that.”
It was also agreed that the water in question was diverted without the consent of the other parties to said decree, and without having been measured by the county surveyor. It was agreed, however, that the water taken by Mr. Mitchell was measured by the water commissioner of Spanish Fork River and by Mr. Mitchell.
Upon substantially the foregoing facts the court made findings of fact and conclusions of law, in which it was found that the defendant D. A. Mitchell was guilty of contempt, and judgment was entered accordingly, from which he appeals.
Plaintiffs’ claim and the court’s action are apparently based upon the decree of 1899, while Mr. Mitchell’s defense is based on Comp. Laws Utah 1907, section 1288x25, as amended by chapter 43, Laws Utah 1911, p. 60, which reads as follows:
It will thus be seen that under the stipulated facts the defendant Mitchell clearly had the right to assume that he was keeping within at least the letter of the law of this state relating to the turning of water into a stream which is intended to be diverted therefrom by the owner or claimant thereof at some other point on the stream. Plaintiff’s counsel, however, insists, and the trial court was apparently of the same opinion, that under the statute quoted one may not turn water into a stream the water of which has been appropriated, adjudicated, and apportioned, and at some other point on the stream divert the water so turned in, withofit first applying to the court having jurisdiction of' the water in the stream and obtaining its permission to interfere with the water in said stream, and have the court fix the point of diversion and also provide for a suitable and proper measuring device so as to protect the rights of all .the water users on the stream. Let it be conceded that the foregoing would be a proper, prudent, and safe method of procedure, yet there is nothing in the law, which authorizes the commingling of water, requiring it. Moreover, if the person who turned water into a stream, which he diverted at some other point thereon, in so doing interfered with the substantial rights of any one having an interest in the water flowing in the stream, the courts would have ample power to prevent or to arrest any wrong that might arise in that regard. Again, if it were assumed that .the defendant Mitchell should have done something more than he did in turning in and in diverting the water in question, yet his failure- in that regard would not necessarily constitute a contempt of court. .The water claimed and used by Mr. Mitchell, it is agreed by all, was turned into, that is, added to, the volume of water flowing in the stream, and the water turned in by him was of the character and' quality flowing therein. The water he di
The judgment is reversed, and the cause is remanded to the district court of Utah County, with directions to set aside its findings of fact and conclusions of law, and to vacate the judgment based thereon and to dismiss the proceeding at plaintiffs’ costs. Appellant to recover costs on this appeal.