Bigler v. Fryer
| Decision Date | 10 October 1933 |
| Docket Number | 5142 |
| Citation | 82 Utah 380,25 P.2d 598 |
| Court | Utah Supreme Court |
| Parties | BIGLER et al. v. FRYER et al |
Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.
Suit by Edward Bigler, individually and as administrator of the estate of George A. Bigler, deceased, and others against Robert A. Fryer and others. From a decree adjudicating certain waters and awarding damages, defendants appeal.
AFFIRMED IN PART AND REMANDED, with directions.
Thatcher & Young, of Ogden, for appellants.
J Wesley Horsley, of Brigham, for respondents.
This is a suit to adjudicate the waters of the Pack or Barnard spring a natural stream arising on the premises of Robert A. Fryer near Collinston, Box Elder county, Utah. All of the claimants to the water are parties either plaintiff or defendant. The only measurement of the stream was made in June, 1930, which was a low-water year when it flowed 1.044 cubic feet per second. There is testimony that in high-water years it would flow about one-third more. The flow of the spring is fairly constant throughout the irrigation season. The waters of this spring had been used continuously by the parties and their predecessors in interest for upwards of fifty years. The respective users have taken the entire flow in rotation for a stated number of hours. During approximately the first half of that period the turns were taken each two weeks and latterly each week. The court made findings and decree wherein was described the lands owned by the parties on which the water had been used and awarding the use of the waters on such lands as follows: Robert A. Fryer, 27 hours per week; George Fryer, 5 hours per week; estate of George A. Bigler, 44 hours per week; Joseph A. Fryer, 24 hours per week; Edward Bigler, 24 hours per week; Thomas Potter, Robert J. Potter, and Thomas William Potter, 24 hours per week; and J. A. Bigler, 20 hours per week. On this appeal there is no dispute between the parties as to this division of the waters, except appellant Robert A. Fryer claims he should have been awarded 34 instead of 27 hours per week, and that the estate of George A. Bigler should have been awarded 37 hours instead of 44, a difference of 7 hours per week. Appellant further contends there was no competent evidence to sustain the judgment for $ 33 damages against him and in favor of respondent, that he was entitled to a decree awarding him secondary rights in the stream, and that the costs should by the trial court have been divided between the parties instead of taxed against him. For convenience, and since the only contest now is between Robert A. Fryer as appellant, and the estate of George A. Bigler as respondent, we shall refer hereafter to these parties as appellant and respondent, respectively. From the evidence adduced and the inference deducible therefrom the original appropriators of the waters of this spring were Mark Bigler, James Standing, and Henry G. Jemmett. The discrepancy now complained of appears in substantially the same amount in the first claims made by these original water users. Mark Bigler and James Standing on August 11, 1884, were each granted water certificates by the selectmen and ex officio water commissioners of Box Elder county wherein Bigler was adjudicated to be entitled to 136/336ths of class 1 of the natural water supply known as Pack or Barnard spring for irrigation purposes, and James Standing was similarly adjudicated to be entitled to 168/336ths of the same spring for irrigation purposes. There are 336 hours in two weeks, and at that early date the water was rotated in use over a period of two weeks, the parties claiming 136 and 168 hours' use in a two-week period, respectively. When the rotation period was changed to every week it would result in the owners of the Standing lands claiming 84 hours a week and the owners of the Bigler lands 68 hours a week. These two men thus claimed the entire flow of the water except 32/336ths or 16 hours a week. No award was made by the water commissioners to Jemmett and not anything is shown in the record as to whether or not he was a party to the adjudications wherein Bigler and Standing were awarded water. The certificates were admitted to show the claims made by Bigler and Standing and the date thereof. Holman v. Christensen, 73 Utah 389, 274 P. 457.
The first record of any claim by Henry G. Jemmett to any of the waters in dispute appears under date of November 20, 1885, wherein Henry G. Jemmett conveyed to William and George W. Driver certain lands and water rights including "an undivided one-seventh of the waters of Lower Pack or Barnard spring." The appellant is now the owner of the Jemmett land. In each of the deeds through which appellant deraigns title from Jemmett is found the same language with respect to the conveyance of an undivided 1/7 of the waters of the Pack or Barnard spring. It is thus apparent that as early as 1885 Jemmett claimed to own 1/7 or 48/336ths of the water, or 24 hours a week. Neither of these documents, the deed or water adjudications, are evidence of original appropriation, but are evidence of the claims made by the earliest users of the water who were undoubtedly the ones who made the appropriation of all the waters of the spring during the irrigation season. The record also shows that on February 23, 1886, Henry G. Jemmett filed a claim to "all of the waste waters of what are known as Barnard springs * * * I claim said waste waters and said small springs together with the waters thereof for irrigation purposes." At that early date there was a claim by the three parties to a total of 8 hours more per week than there were hours in the week. The discrepancy has been reduced to 7 hours as will appear later in this opinion.
Joseph A. Fryer and the estate of George A. Bigler are now the owners of the original Mark Bigler lands and claim between them Bigler's 68 hours of water, 24 hours per week to Joseph A. Fryer, and 44 hours per week to the Bigler estate. The James Standing lands are now owned by Edward Bigler, Thomas Potter, and his sons Robert J. and Thomas William, J. A. Bigler, and Robert A. Fryer the appellant, and his 84 hours of water allocated as follows: Edward Bigler, 24 hours; the Potters, 24 hours; J. A. Bigler, 20 hours; and Robert A. Fryer, 16 hours. The portion of the lands and water from the original Standing tract, now owned by appellant, became know as the Ensign tract, and by mesne conveyances were conveyed to the appellant. The deeds to the Ensign tract describe the water purported to be conveyed as "the 30 hours water right in each two weeks from the Pack or Barnard spring," or the equivalent of 15 hours a week. Part of the Ensign tract was conveyed by appellant to his brother George Fryer together with five hours of water right a week, and in the testimony the distinction between the ownership of Robert A. and George Fryer is not always made and the entire water right of the Ensign tract is frequently referred to as a unit.
The court found, and we think the preponderance of the evidence supports that finding, that, notwithstanding the recitals in the Jemmett and Ensign deeds, for a period of more than 40 years the waters were allotted by the water masters and used by the respective landowners in the proportions awarded by the findings and the decree. That is 16 hours a week water was allocated to and used on the Ensign tract and 16 hours a week on the Jemmett tract, thus giving this appellant 32 hours a week before the sale of a water right of 5 hours a week to George Fryer. Among other witnesses who testified to this allotment and use over a long period of time were the persons who owned and farmed the lands of the Jemmett tract and the Ensign tract prior to appellant's occupancy thereof, and these persons testified to their use of 16 hours a week on each tract. The appellant, while insisting that he had used, not 32 only but 39 hours per week, in his farming operations, testified on cross-examination as follows:
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