Bivans v. Utah Lake Land, Water & Power Co.

• Decision Date: 20 August 1918
• Docket Number: 3189
• Citation: Bivans v. Utah Lake Land, Water & Power Co., 53 Utah 601, 174 P. 1126 (Utah 1918)
• Parties: BIVANS et al. v. UTAH LAKE LAND, WATER & POWER CO. et al. (CHURCHILL et al., Interveners.)
• Court: Utah Supreme Court

174 P. 1126

53 Utah 601

BIVANS et al. v. UTAH LAKE LAND, WATER & POWER CO. et al. (CHURCHILL et al., Interveners.)

No. 3189

Supreme Court of Utah

August 20, 1918

Appeal from the District Court of Utah County, Fourth District; Hon A. B. Morgan, Judge.

Action by S. A. Bivans and others against the Utah Lake Land, Water & Power Company and others, wherein George O. Churchill and others intervened.

From an order or decree granting motion to vacate awards of arbitrators, all plaintiffs and interveners deeming themselves prejudiced appeal, and defendants and a receiver also appeal from certain parts of the order or decree confirming the settlement made.

AFFIRMED.

W. I Snyder for plaintiffs.

Walton & Walton for interveners.

Thurman Wedgwood & Irvine for defendants.

BRAMEL, District Judge. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur. THURMAN, J., being disqualified, did not participate.

OPINION

STATEMENT OF FACTS.

This action was brought in the court below by Bivans and twenty-seven other plaintiffs against Utah Lake Land, Water & Power Company, a corporation, Elberta Orchard Company, a corporation, and M. B. Whitney, defendants. Eighteen other parties intervened as parties plaintiff. So far as issues presented upon this appeal are concerned, both plaintiffs and interveners may be placed in one class. The complaint covers twenty-eight typewritten pages, but the substance of its contents, broadly stated, is as follows:

Defendant M. B. Whitney acquired several thousand acres of unirrigated lands in the vicinity of Goshen, Utah, and claimed to have acquired certain water rights therefor in the Elberta reservoir and in the watershed draining into said reservoir. Whitney then organized the two defendant corporations, in which he owns substantially all of the stock, and over which corporations he exercises control and dominion, and which are, in short, the alter ego of Whitney himself. He conveyed lands and alleged water rights to these corporations, and used them in selling land, and in making contracts for the sale of land, and in handling the notes, mortgages, and contracts involved therein.

While these things were being done, Whitney conducted a campaign of advertising for himself and for his corporations to sell land. By means of the press, pamphlets, and folders it was represented by defendants to plaintiffs that the two corporations owned 15,000 acres of fertile land and the Elberta reservoir, which they said contained water enough to irrigate 26,000 acres, and they said defendants also owned other water sources in that watershed, making sufficient water to irrigate three-times the amount of land owned. It was further represented that a water system to irrigate 10,000 acres of the land in question was complete, and that with little expense it could be extended to serve 15,000 acres; that there was a permanent and abundant supply of water for said lands; that said lands were frostless fruit lands, where smudge pots were not required; that lands purchased would carry full water right, and water would be delivered at the headgate of purchaser; that $ 2 per acre would be the maintenance charge, etc.; that school conveniences existed; that title to water and land was perfect, etc.

Plaintiffs (and interveners), not knowing the facts concerning said lands and said project, believed and acted upon said representations, and bought lands and alleged water rights from defendants. It is further alleged that all said representations were false, and were by defendants known to be false, and were made by defendants for the purpose of inducing plaintiffs (and interveners) to rely thereon and to buy lands, and that such representations accomplished such purpose. It is further alleged that said defendants did not own said alleged water rights, or any of them; that the capacity of said reservoir was sufficient for only 1,000 acres, and that practically all the alleged waters in the same and practically all the waters of the said watershed were owned by prior appropriators; that the only water available for plaintiffs was an occasional overflow.

Plaintiffs (and interveners) paid from $ 100 to $ 300 per acre for their lands. Some paid cash, and some paid in notes and mortgages. They entered upon their respective tracts of land, made improvements, and tried to raise crops. For lack of water they could not farm. The damage sustained by each plaintiff, in difference between value of the land with water and its value without water, improvements made, and crops lost, is set forth.

There are further allegations to the effect that defendants were insolvent and have no property to respond in damages, and that they are trying to dispose of notes and mortgages given by plaintiffs, to plaintiffs' irreparable injury. It is also alleged that defendants have sold more water than they have, and are trying to sell more land and alleged water rights, to the further prejudice of plaintiffs. Prayer for judgment for damages, injunction to prevent further sales of land and water, receivership, and further relief.

Defendants filed a demurrer and an answer to plaintiffs' complaint. The answer is, except as to corporate existence, sales made, etc., a general denial.

After the issues were made up, all parties to the action, through their respective attorneys, entered into two written stipulations, which were duly entitled and filed in the trial court in this cause, wherein (in the first stipulation) they stipulated "that this action is hereby compromised and settled upon the following terms and in the following manner." The stipulation provides that a decree of court may be entered establishing the settlement made. All matters, except damage claims, are settled by the stipulations and decree based thereon.

Following this, the stipulations provide that the matter of damage claims shall be submitted to arbitration in the manner provided by the statutes of Utah, and that the court shall make order to that effect. Such an order was made. The litigants selected arbitrators. The arbitrators met, held an inquest lasting thirty-five days, and prepared and filed in court an award wherein some of the plaintiffs (and interveners) were given damages and some were given nothing. Defendants moved the court to vacate the awards of damages for several reasons set forth in the motion. The court granted the motion, and signed a decree or judgment in which, among other provisions, the awards are set aside, and the plaintiffs and interveners are directed to present their claims for damages to a receiver, who had been appointed over the properties in another action in the trial court. In this same order or decree the court confirms the settlement of other matters made by the stipulations. From the order or decree of court granting the motion to vacate the awards, all the plaintiffs and interveners who deem themselves prejudiced thereby appeal to this court. The defendants and the receiver also appeal from certain parts of this order or decree which confirms the settlement made. Other facts appear in the opinion.

BRAMEL, District Judge (after stating the facts as above).

A first question raised by respondents, which must be considered at the outset, is whether the order of the court below, vacating the award, is or is not appealable. The parties stipulated that the claims of plaintiffs and interveners for damages should by order of court be submitted to arbitration, and that such arbitration should be conducted and enforced, in all respects, as provided by chapter 40 of the Compiled Laws of Utah of 1907; and the court made such order. The stipulating parties were all the parties in court. They in the aggregate were the masters of the subject-matter. They had the right to make any lawful disposition of the cause that pleased them best. They had the right to choose any form of proper procedure established by law. Chapter 40 (of Code of Civil Procedure), Compiled Laws 1907, regulates the procedure and declares the effect of arbitration held thereunder. It also provides for the manner in which the district court may, on motion, annul, modify, or correct the award of the arbitrators. When the stipulation and order of court were made, the controversy as to the damage claims ceased to be an ordinary action, as contemplated by the statutes regulating procedure, and became a special proceeding, or a matter in arbitration, to be governed by the laws applicable thereto.

Section 9 of article 8 of the Constitution of Utah, inter alia, contains this provision:

"From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court."

The Constitution of Utah went into effect January 4, 1896. At this time the statutes of Utah, by specific enumeration, provided for appeals from various orders of the district courts which are not final judgments. For instance, by statutes existing on January 4, 1896, an appeal was given from an order granting or refusing a new trial, from an order granting or dissolving an injunction, from an order dissolving or refusing to dissolve an attachment, and, what is to the point in question, there was a provision in the chapter on Arbitration allowing an appeal from an order of the district court, vacating or modifying an award of arbitrators. The present statutes concerning arbitration are now in all respects substantially the same, and, so far as concerns the right of appeal from an order vacating or modifying an award, are identically the same as they were on August 1, 1884, on which date they were enacted. These provisions, with the exception of one section concerning the attendance of witnesses, were borrowed from California.

In 1896, some months after the Constitution became operative ...