Bartholomew v. Fayette Irr. Co.
| Decision Date | 03 August 1906 |
| Docket Number | 1710 |
| Citation | 86 P. 481,31 Utah 1 |
| Court | Utah Supreme Court |
| Parties | BARTHOLOMEW v. FAYETTE IRR. CO |
For subsequent opinion see 31 Utah 220.
APPEAL from District Court, Sanpete County; F. Erickson, Judge.
Action by George M. Bartholomew against the Fayette Irrigation Company. From a judgment for defendant, plaintiff appeals.
REVERSED AND REMANDED, WITH DIRECTIONS TO RENDER JUDGMENT FOR PLAINTIFF.
W. D Livingston for appellant.
APPELLANT'S POINTS.
When a suitor comes into a court of proper jurisdiction to settle "differences of opinion," "claims of rights" or conflicts of interest in relation to his property the court must not avoid the duty imposed upon it and thereby defeat the objects of jurisprudence. It must proceed to adjudicate the rights of the parties and extend the arm of law sufficiently to protect such rights. It must decide all the issues and if insufficient evidence for such purpose with certainty is produced it must exercise its prerogatives and bring forth sufficient information to enable it to settle the issues. (11 Enc. P1. & Pr., 905 and cases cited; Spelling, New Trials and Appellate Procedure, sec. 253 and cases cited; Nephi Irr. Co. v. Jenkins, 31 P 986.)
The principle of majority cannot be applied where the relationship is merely appropriators upon the same stream, or where the parties are tenants in common. In such relationships the parties may agree among themselves that each shall have the use of the water at certain times. (Long on Irrigation, sec. 61 and cases cited.)
But in the absence of such agreement the plaintiff may, to the extent of his appropriation use sufficient quantity of water to irrigate all his lands for which the appropriation was made. The benefits of his use cannot be impaired either in curtailing the amount, or in the period of use. (Long on Irrigation, sec. 54 and cases cited.)
In neither relation could the major interest subject the minor interest to its control and management.
Each party might use the water as he saw fit so long as it did not interfere with the rights and use of the other appropriators. (Id., 670, 671; Peabody v. Minot, 41 Mass. 329.)
The parties have legal and equitable remedies to which they resort according to the right interfered with or the remedy sought, and they may have all their rights settled and remedies applied in a single suit. (Id., 705.)
Jacob Johnson for respondent.
This action was brought by plaintiff against the defendant, a private corporation, to restrain it from regulating and controlling the distribution of the waters of Warm creek, situate in Sanpete county. Judgment was for the defendant. Plaintiff appeals.
The creek is a natural stream of water having its source from natural springs east of the town of Fayette. Many years ago the plaintiff and others appropriated all the waters of the stream for irrigation and culinary purposes. The stream is sufficient to irrigate only about two hundred and fifty or three hundred acres. The plaintiff was one of the earliest appropriators, and made his appropriation in 1883. In 1888 the owners and appropriators, by arbitration, determined the quantity of water in the creek and divided it into 565 shares or acres, of which plaintiff's quantity was fixed at thirty-nine and a fraction acres or shares. He owned fifty-five acres of land lying to the east of Fayette, upon which the water was used. Of the 565 acres or shares the stockholders of the defendant corporation own 404 shares or acres, and the remainder is owned by persons not stockholders of the defendant corporation. There is no question raised as to the quantity of water to which plaintiff is entitled. When the waters of the stream were first appropriated, there were what are called the "North Bench and the South Bench Ditches," also called the "Field Ditches," in which waters of the stream coursed to irrigate lands outside of the town of Fayette. There was also a ditch called the "City Ditch," in which the waters of the stream coursed to irrigate the town lots of Fayette and to supply the people of Fayette with water for culinary purposes. Later the two field ditches were consolidated into one ditch, the South Bench ditch, which was extended a distance of more than its original length.
The points of contention are as to the manner in which the plaintiff is entitled to use the water out of the field ditch, and as to the authority of the defendant corporation to regulate and control its distribution. On the part of the plaintiff it is contended that for many years, fifteen or twenty, and until interfered with by the defendant, he used the water of the creek by what is known as "half turns"--that is, every irrigating season he used the stream for nineteen and twenty hours each ten or twelve days; that he acquired a right to so use it; that such a use is necessary, especially to grow garden and fruit products, which were, for many years, raised by him, and that such a use is also better adapted to, and more economical in, the raising of ordinary farm products. From the time of the appropriation of the water, and until the incorporation of the defendant in 1903, in the spring of each year, the water owners and users of the field ditches met in mass or public meetings, and elected a committee, generally of three persons, whose duty it was to measure and distribute the water, and to make out bulletins to the water users. It was testified to by some witnesses that the water users indicated at such meetings, and, by other witnesses, that the water users indicated to the committee when making out the bulletins, whether they desired to use the water by the whole or half turn; that is, for instance, as to plaintiff's case, whether he would take the water every ten or twelve days for nineteen and twenty hours, the half turn, or every twenty or twenty-one days for thirty-nine hours, the whole turn; and that the water was distributed by the committee accordingly, and as indicated by the user. Some took the water by the half turn, others by the whole turn. The evidence shows that the plaintiff, until interfered with by the defendant, had the use of the water from the field ditch every ten or twelve days. In 1903 a majority of the water users and owners formed a private corporation. The plaintiff and four or five other owners and water users did not join the corporation, nor did they convey or grant any right or title to it.
After the incorporation, and especially in 1904, the defendant, as such corporation, assumed to and did regulate, control manage, and distribute the waters of the stream, as well as manage, control and regulate the ditches. In the defendant's answer it is alleged, and in its brief it is asserted, that in the year 1903 a majority of the water owners formed a corporation, the respondent herein, "for the purpose of managing, regulating, controlling, and distributing the waters of Warm creek to and among its stockholders and other owners of the water of said creek, and to maintain and keep in repair the various ditches incident to the use, control, regulating, and distributing of said water." In its brief it is further stated: ...
To continue reading
Request your trial