178 P. 586 | Utah | 1919
Plaintiff claims title to the waters of a certain spring in Tooele County. He alleges that said water has been used, in connection with other water, for the irrigation of about 15 acres of land, and for other beneficial purposes; that said land
In a second cause of action plaintiff alleges substantially the same facts, and in addition thereto that all of said water is necessary for the beneficial purposes aforesaid, and that a further extension of said trench would totally destroy said springs, deprive plaintiff of the use thereof, and the injury to him would be irreparable by action at law for damages. Plaintiff prays for injunctive relief.
Defendant, answering, admits that artificial irrigation of plaintiff’s land is necessary to produce crops, but denies the remaining allegations. Defendant affirmatively alleges that the water in question is percolating water, having no definite course or direction; admits that he constructed the trench complained of, but alleges that it was constructed by him-upon the land of O, A. Johnson, and extended across land owned
The trial court found the issues in favor of the defendant, and judgment was entered accordingly. • Plaintiff appeals and assigns as error certain findings of the court. The findings challenged are as follows:
(3) “That there is no spring of water in the lane or highway west of plaintiff’s land, the water arising there being water which percolates through the soil of the Johnson and Bush properties in a most diffused manner, with no defined channels or courses; that such water came partly from the irrigation of the Johnson and Bush lands above said lane, and partly from the melting of snow and rains during the spring or wet season; that the water arising in said lane came from the water that was either applied to or fell upon the land in close proximity to said lane, and did not come from melting snow in distant canyons.”
(4) “That neither the plaintiff nor his predecessors in interest made an appropriation of nor put to a beneficial use any water arising in said lane or highway; that said water, for more than ten years past, had been permitted to remain where it arose to the surface, with no systematic effort to gather or control same by any one; that during said period said water, having been permitted to so remain and settle in said lane, rendered the road at such point frequently impassable, and that by reason of said water so rising to the surface and spreading over the highway rendered it necessary to constantly repair said highway to render it passable; that said, waste water would naturally drain in an easterly direction and toward and upon plaintiff’s property, and if any of such water did reach plaintiff’s land it was by reason of the natural lay of the land and not by reason of any diverting works constructed by plaintiff or his predecessors in interest. ’ ’
It is manifest from the pleadings, the evidence, and the findings that the court, as well as the parties litigant, considered the principal issue to be whether or not the water reached the springs through subterranean channels, well defined, coming from a remote distance, or whether it came from percolations in adjacent land, caused by irrigation and precipitation upon said lands, and other lands in the vicinity. In this connection, we call attention to the fact that there is noth-' ing in the record to show when any of these lands were reduced to private ownership, whether before or since the so-called appropriation by plaintiff or his predecessor in interest. This fact is vitally material, for, up to this time at least, it has never been held by this court that water can be appropriated from private lands. In fact the decisions are all the other way wherever the question has been directly presented. Cases will be cited before concluding these remarks.
The record is also defective in not showing the ownership of the land in the highway where the spring has its outlet — • whether it is in the public or in the owner of the adjacent land on the west does not appear. The record is also defective in not showing the source of the water used in irrigating the adjacent lands on the west, whether it is a river, creek, stream, or pi’ivate reservoir, or whether the lands irrigated belong to an irrigation system from which many persons use water, or whether it is isolated and entirely independent of any system in which others are interested. It is also defective in not showing whether the water in dispute would, if not obstructed, find its way back into the stream or source from which the adjacent lands on the west obtain their water for irrigation.
In Sullivan v. Mining Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186, this court, in a remarkably clear opinion, held that a person appropriating water on the public domain by means of a well sunk in the ground is entitled to use the same as against a subsequent patentee of the land, and that, too, where it is water percolating into the well as contradistinguished from water flowing in well-defined channels. The opinion quotes the law of Congress recognizing the right to appropriate water on the public domain, and the law of Utah, then a territory, declaring the conditions under which appropriation would be considered as a vested right. This case has never been overruled or modified by any subsequent decision, but because of certain dictum contained in the opinion itself, after the court had clearly and succinctly declared the law of the case, the real meaning of the opinion has been distorted and misapplied by the casual reader. The dictum referred to occurs on page 444 of 11 Utah, on page 710 of 40 Pac. (30 L. R. A. 186), and reads as follows:
‘‘This right of an appropriator is, of coarse, subject to the rule of law which will permit the owner to sink an adjoining well on his own premises, although he should' thereby dry up that of the first appropriator. ’ ’
The laws of Congress and of the Territory of Utah above referred to are the laws under which the plaintiff in this case must have appropriated the water in question if, in a legal sense, he has appropriated it at all.
In Crescent Mining Co. v. Silver King Mining Co., 17 Utah, 444, at page 456, 54 Pac. 244, 70 Am. St. Rep. 810, the court expressly refers to Sullivan v. Mining Co., supra, and ap
The Crescent Case holds that where the water issues from patented land an appropriation afterwards made is not valid as against the patentee if the water is percolating water.
The case of Willow Creek Irr. Co. v. Michaelson, 21 Utah, 248, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687, in its facts is identical in principle with the Crescent Case, but the court in the last paragraph of its opinion is more specific as to the exact point upon which the case was decided. The fact that the water arose on the land and was appropriated after it ceased to be government domain was the point upon which the decision turned. See, also a case decided this term (Peterson v. Eureka Hill M. Co., 53 Utah, 70, 176 Pac. 729). None of these cases have been overruled or modified' by subsequent decisions, unless we rely on dictum as authority and entirely ignore the questions decided. Neither are they in conflict one with the other. The concrete doctrine of these cases, when reduced to the last analysis, is, if the land from which the water is taken is public domain, the water is subject to appropriation whether it is percolating water or water flowing in well-defined channels either above or under the surface. If it is private land and the water is percolating, as known and understood at the common law, then it is not the subject of appropriation as against the owner of the land.
The foregoing cases are sufficient, in our judgment, to demonstrate the necessity in the present case of requiring the record to show whether or not the adjacent land on the west was public domain when the alleged appropriation was made.
The question as to whether the fee of the land in the highway where the water issues from the ground is in the owner of the adjacent land on the west or in the public is material for the same reason, though perhaps in a less degree. If the
The next question is the source of-the water used to irrigate the adjacent land on the west in which the trench was dug. If it was from a river, creek, or other natural stream the waters of which have been appropriated and the waste waters from irrigation find their way back into the stream and again become a part thereof, a question will be presented which as yet this court has not determined.
In Roberts v. Gribble, 43 Utah, 411, 134 Pac. 1014, the water in dispute resulted mainly from the irrigation of lands in the vicinity. Defendant’s land became swampy. He put in a drain system, collected the water, and used it upon his own land. In doing so he deprived plaintiff of its use. This court decided the case in favor of defendant.
The principle underlying these two eases seems to be that waste and seepage waters from artificial irrigation constitute an artificial, rather than a natural, source of supply, and therefore are not the subject of appropriation. This principle is undoubtedly correct as applied to the facts in the Garns Case, and the Roberts-Gribble Case relies on the Garns Case as authority. If it goes no farther we are of the opinion it rests upon a firm foundation.
"We appreciate the importance of every decision by this court relating to the subject of irrigation and water rights, especially when we realize that even fugitive suggestions outside the issues of the case as well as expressions applicable to the facts may be erroneously referred to and relied- on in subsequent cases. For these reasons we desire before attempting to decide the case at bar to have before us sufficient facts upon which to base an intelligent opinion.
It is therefore ordered that the case be remanded to the trial court for further proceedings in accordance with the views