Big Cottonwood Tanner Ditch Co. v. Shurtliff

• Decision Date: 27 December 1916
• Docket Number: 2793
• Citation: 49 Utah 569,164 P. 856
• Court: Utah Supreme Court
• Parties: BIG COTTONWOOD TANNER DITCH CO. v. SHURTLIFF et ux

164 P. 856

49 Utah 569

BIG COTTONWOOD TANNER DITCH CO. v. SHURTLIFF et ux

No. 2793

Supreme Court of Utah

December 27, 1916

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Big Cottonwood Tanner Ditch Company against Vincent Shurtliff and Mary E. Shurtliff, his wife.

From the decree, defendants appeal.

REVERSED in certain particulars and cause remanded, with directions; otherwise affirmed.

Stewart Stewart & Alexander for appellants.

D. W Moffatt for respondents.

FRICK J. STRAUP, C. J. concurring in the result. McCARTY, J dissenting in part.

OPINION

FRICK, J.

This action was originally commenced by the plaintiff, hereinafter called "respondent," against Vincent Shurtliff and his wife Mary E. Shurtliff, hereinafter called "appellants," to restrain them from interfering with the water in a certain ditch. The complaint was afterwards amended, and all the water users (claiming water rights in four certain ditches) were made parties to the action. All claimants thus came into court, and each one, including the appellants, set forth his claim to the use of water and the amount thereof in the several ditches aforesaid. It developed at the trial--indeed, it was practically conceded by all claimants--that they were all tenants in common respecting the water flowing in any particular ditch as well as in the waters flowing in the four ditches, and that the title to the waters flowing in all of the ditches was derived from a common source, to wit, Big Cottonwood Creek. It is important to keep in mind this feature of the case. The case was tried and determined upon that theory.

Upon this appeal appellants' rights to the use of water in only one of the four ditches is in question, namely, the ditch known as the South Branch of the Big Cottonwood Tanner Ditch.

It was made to appear that nearly all of those who owned water rights in the four ditches formed a corporation, which is the respondent here. The corporation was organized for the purpose of controlling, apportioning, and distributing the water in all of the four ditches to the various owners thereof. The appellants, and a few others, refused to become members of the respondent corporation, and thus its officers, since about 1902, or 1903, have controlled and distributed the water to those who did not become members as well as to those who did. Appellants, it seems, have always claimed more water than said officers were willing to distribute to them out of the South Branch Ditch aforesaid. The respondent, in its complaint, alleged that appellants interfered with the water in said South Branch, and that they at times diverted and used water therefrom contrary to the regulations prevailing for the distribution and use of the water, and that they diverted more water than they were entitled to from said ditch. Upon the other hand, appellants averred that the respondent arbitrarily, and without right or authority, has restricted them in the use of water for irrigation as well as for culinary and domestic purposes.

After a hearing, the District Court of Salt Lake County determined and fixed the rights of all the water users who did not consent to what was claimed by the respondent constituted their rights in the several ditches, and entered a decree in accordance with the findings of fact and conclusions of law in that regard. The court determined and fixed appellants' rights to the use of water in the South Branch Ditch in the following terms:

"The court further finds that Vincent Shurtliff and Mary E. Shurtliff, his wife, have received and are entitled to receive through the South Branch of the Big Cottonwood Tanner Ditch from the 1st day of January until the 30th day of June of each year forty-one (41) shares of water right, from the first day of July to the 31st day of December of each year, twenty-nine (29) shares of water right."

The court also found and adjudicated that appellants were not entitled to any additional water for culinary or domestic use, and enjoined them from in any way interfering with the water flowing in said South Branch Ditch.

The appellants alone appeal from the findings, conclusions of law, and decree in so far as the same affect them.

One of the other parties to the action has also assigned cross-errors to which we shall refer later.

Appellants' counsel, with much vigor, insist that the court erred: (1) In awarding them only 41 shares of the water of said South Branch Ditch from the 1st day of January to the 30th day of June and only 29 shares during the remainder of each year; and (2) in not awarding them any water for culinary and domestic use in addition to the shares awarded to them.

There is really no dispute between the parties to the appeal respecting the law, nor is the evidence upon the questions that must control here seriously in conflict. While it is true that appellants strenuously insist that they are entitled to more water from the ditch in question for irrigation purposes than the quantity awarded them in the decree by reason of appropriation and use, yet the evidence stands uncontradicted that in the year 1879, in order to arrive at some definite understanding respecting the division and distribution and use of water as between the several ditches as well as among the owners of water rights in said ditches, the water users, including those on said South Branch Ditch, held a meeting, which they called an arbitration meeting, by which the rights of the several ditches, as well as the rights of the several owners of water rights in each ditch, were determined and fixed. A Mr. Robert Hawker, the predecessor in interest of the appellants, and from whom, in 1883, appellants purchased the land they now own and with respect to which they claim the water right, was a member and participant of that meeting. By that meeting, among other things, it was agreed and determined that the appellants were entitled to 41 shares of water out of said South Branch Ditch from January 1st to July 1st, or July 10th, in each and every year, and to 29 shares to the end of the year. One share of water was intended as representing one acre of land. It seems that thereafter water certificates, or "water tickets," were issued to each owner in accordance with his rights in the ditch from which he obtained his water supply. Mr. Richard Howe, who was familiar with the facts, in referring to what was done, and especially to what Mr. Hawker, the then owner of appellants' land, said, testified as follows:

"It was after they had gotten their certificates, or what I would call certificates, from the board of arbitrators as to the amount of land they had allowed them water for, and Robert Hawker met my father when I was with my father, right on the corner, northwest corner of the Shurtliff place now, right in the street. They together discussed the matter. Robert Hawker said, 'Well,' he says, 'I feel perfectly satisfied with the award they have made me.' My father says, 'I think they cut me down about two acres too low.'"

Mr. Fowlkes, who was water master long after the arbitration agreement was entered into, namely, during the years 1899 to 1902, inclusive, testified that he issued water tickets to appellants for forty-one shares during the first half and for twenty-nine shares during the last half of each year. Indeed, the evidence to that effect is overwhelming.

Appellants' counsel, however, contend that their clients cannot be bound by the arbitration agreement, since, as they contend, appellants were not parties to it; and, further, that they have always protested against the amount of water allowed them, namely, the forty-one shares and the twenty-nine shares for the periods aforesaid. Moreover, counsel insist that their clients should be allowed a specific quantity of water, measured in second feet, in accordance with their appropriation rights. With all due respect for counsel's contention in that regard, we are clearly of the opinion that they are in error upon both propositions.

In considering the first proposition, it must be remembered that appellants succeeded to all the rights possessed by Mr Hawker; no more, no less. Hawker, as the owner of the water right, in case of dispute, could agree to any arrangement which was satisfactory to himself and to the other water users on the ditch. His agreements, if acted upon by the other water users, would not only be binding upon him, but would also bind all who claim through or under him, and, in view that appellants claim under him, they are bound by his agreements. Appellants are therefore bound by the arbitration agreement of 1879. True, there was a slight modification of that agreement in 1889 to which appellants were not parties, but that modification in no way affects any of appellants' rights. Indeed, the court awarded appellants the same shares of water and for the same periods of time that were awarded to Hawker in 1879, and always distributed to him, and, after he sold to appellants, to them. Referring now to counsel's second proposition, namely, that the amount of water appropriated by Hawker and his predecessor in interest, a Mr. Olson, should be awarded to appellants, cannot prevail. This case is not one where the original appropriations can be considered for any purpose. In this case the water owners, as stated before, are tenants in common of all the water in a particular ditch, and each is entitled to the proportion or shares agreed on by the arbitration agreement aforesaid. Neither the parties nor the court can now go behind that agreement, since it is now, and for many years has been, the basis of each water user's rights in any one of the several ditches, just as the trial court has determined in this case. Counsel's second...