Campbell v. Nunn

• Decision Date: 09 September 1931
• Docket Number: 4980
• Court: Utah Supreme Court
• Parties: CAMPBELL v. NUNN

2 P.2d 899

78 Utah 316

CAMPBELL v. NUNN

No. 4980

Supreme Court of Utah

September 9, 1931

Appeal from District Court, First District, Box Elder County; Melvin C. Harris, Judge.

Suit by Walter A. Campbell against Sophia J. Ryan Nunn. From the decree, defendant appeals.

AFFIRMED.

B. C Call and Lewis Jones, both of Brigham City, for appellant.

W. E Davis, of Brigham City, for respondent.

FOLLAND J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This case involves a dispute between adjoining landowners in Box Elder county as to the quantity of water each is entitled to use from Clear and Rosevear, creeks. From a decree quieting plaintiff's title to a proportion of the creek and of water claimed by him, defendant appeals. Clear creek arises in the mountains near the northern boundary of Utah and runs in a general northerly direction into Idaho. Rosevear creek is one of the tributaries of Clear creek. In the spring of the year and until July 1st, the waters are high and there is sufficient to supply all the needs of the parties hereto and of others, but after July 1st and until the late fall the supply of water rapidly decreases so that it is not sufficient for the demands made upon the stream. In an action wherein Naf Irrigation Company was plaintiff and Sophia J. Ryan and others were defendants, commenced in 1912 and tried and decided in 1918, the appellant herein was decreed to be the owner and entitled to the use of 6/346 of the waters of Clear creek and its tributaries at such times between the 1st day of July and the 1st day of December, both inclusive, when the flow thereof does not exceed six cubic feet per second measured at the point of diversion of the Naf ditch at the north boundary line of section 36, township 15 north, range 13 west, Salt Lake Meridian, and during all other times when not in excess of six cubic feet per second she was adjudicated and decreed to be entitled to the use of such waters in the quantities and priorities as follows: One-tenth of a cubic foot per second with priority dating from the year 1885, and 2.9 cubic feet per second with a priority dating from the year 1901. During the interim between the filing of the case last above referred to and the time of the decree, appellant sold and deeded to Heleman Campbell, respondent's grantor, 100 acres of land and 2/5 of all the water rights owned by her in Rosevear and Clear creeks. It is contended by respondent that he is entitled, by virtue of this conveyance, to 2/5 of the water decreed to the appellant in the case above referred to, while it is contended by the appellant that in that case she had decreed to her full water right after deducting from it the 2/5 deeded by her to Heleman Campbell.

Four questions are presented and argued by the appellant:

"1. As a question of fact, did not Heleman Campbell take his 2-5 of Mrs. Ryan's water at or about the time the decree in the prior action? 2. Is the plaintiff estopped at this late date to claim the waters sought in the complaint? 3. Can the plaintiff make beneficial use of said waters in the event said decree is affirmed? and 4. Is the statute of limitations a bar to this action?"

The trial court by its findings of fact, conclusions of law, and decree found adversely to appellant on all these questions; hence this appeal.

It is undisputed that on January 7, 1915, the appellant, who was the owner of the N 1/2 of section 1, township 14 north, of range 13 west, Salt Lake Meridian, in Box Elder county together with water rights in Clear creek and its tributary Rosevear creek for use on these premises, sold 100 acres of the land to Heleman Campbell together with "2/5ths of all the water rights of the grantor in Rosevear and Clear Creeks which is appurtenant to the N 1/2 of Sec. 1." July 9, 1924, Heleman Campbell sold the same land and water rights to the respondent, who went into and is still in possession thereof. On November 12, 1912, a suit was filed in the district court of Box Elder county in which Naf Irrigation Company, a corporation, was plaintiff, and the appellant, then known as Sophia J. Ryan, one of the defendants, to adjudicate the title of the respective claimants to the waters of Clear and Rosevear creeks. The case was tried in August, 1917; findings of fact, conclusions of law, and decree were duly signed by the trial judge November 18, 1919, and filed November 27, 1918. At the time of the conveyance of the land and water from Mrs. Ryan to Heleman Campbell, the quantity of water to which the grantee was entitled had not been fixed but was still to be determined in the lawsuit then pending. Heleman Campbell was not a party to that suit, was not brought into the case by any pleading or otherwise, and no evidence was adduced by him or on his behalf relative to any claim or right in or to the use of the waters. Mrs. Ryan, now Mrs. Nunn, the appellant here, was one of the defendants and claimed to be the owner of the N 1/2 of section 1 and of all the waters which had been used thereon. She had no other land and claimed no other water save such as had become by diversion and use appurtenant to the N 1/2 of section 1. By the findings and decree in that case the court found "that the defendant Sophia J. Ryan is the owner of the N 1/2 of Sec. 1, Tp. 14 North of Range 13 West of the Salt Lake Meridian," and decreed to her the proportionate share of the flow of the stream mentioned above. In her answer in the instant case the defendant alleges the entry of the decree in the Naf Irrigation Case on November 18, 1918, and that Heleman Campbell or his assignee was thereby "given all waters called for in the warranty deed decreed in paragraph 2 of the plaintiff's complaint." To support this allegation defendant relied upon the testimony of certain witnesses who testified to a purported conversation between the presiding judge, who tried the Naf Irrigation Company Case, the defendant Sophia J. Ryan, and Heleman Campbell, which conversation is alleged to have taken place in the court room after the case had been tried and argued. Such testimony was incompetent and was so recognized by the learned trial judge when he came to announce his decision, as it plainly contradicted the findings and decree in the Naf Irrigation Company Case, but had been admitted in evidence because the pleadings and records of that case had been lost and were not available at the beginning of the trial of the instant case. During the course of the trial, however, copies of the pleadings were supplied from the files of one of counsel in that case, the transcript of the evidence was...