Cole v. Richards Irr. Co.

• Decision Date: 05 February 1904
• Docket Number: 1482
• Citation: 75 P. 376,27 Utah 205
• Court: Utah Supreme Court
• Parties: H. B. COLE and J. M. THOMAS, Appellants, v. THE RICHARDS IRRIGATION COMPANY, a Corporation, and Others, Respondents

75 P. 376

27 Utah 205

H. B. COLE and J. M. THOMAS, Appellants, v. THE RICHARDS IRRIGATION COMPANY, a Corporation, and Others, Respondents

No. 1482

Supreme Court of Utah

February 5, 1904

Appeal from the Third District Court. Salt Lake County.--Hon. W. C Hall, Judge.

Action to quiet title to certain reservoir sites. From a judgment in favor of the defendants, the plaintiffs appealed.

AFFIRMED.

J. M Thomas, Esq., and Messrs. Pierce, Critchlow & Barrette for appellants.

Messrs Sutherland, Van Cott & Allison for respondents.

McCARTY J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This is an action to quiet title to six reservoir sites and to all surplus waters that flow into said sites from the country surrounding them, and to restrain defendants from interfering with any of the reservoirs and reservoir sites, dams, headgates, or other improvements thereon, or from appropriating to their own use any of the waters stored or to be stored therein. Four of these reservoir sites are situated within the watershed and near the headwaters of Little Cottonwood Canyon, and the other two reservoir sites are situated lower down, and on the main channel of Little Cottonwood creek. The complaint contained three causes of action. The first and second causes of action were to recover damages from defendants for their alleged wrongful interference with some of the reservoir sites, and the alleged appropriation of the waters stored therein; and the third cause of action to quiet plaintiffs' title to the several sites and to all surplus waters flowing therein, and to enjoin defendants from interfering with plaintiff's rights to the same. Defendants demurred to the first and second causes of action, which demurrer was sustained by the court. The plaintiffs declined to amend, and the case was tried on the issues raised by the allegations of the third cause of action, and defendants answered thereto.

The complaint alleges and the answer admits that Little Cottonwood creek is a natural stream of water, which from time immemorial has flowed continuously through Little Cottonwood Canyon; that for many years the natural and ordinary waters of said stream constituting the primary waters thereof have been and are now appropriated by farmers and others residing in Salt Lake county, Utah, to useful and beneficial purposes; that the volume of waters flowing continuously at all seasons of the year through Little Cottonwood creek and constituting the primary waters thereof is a stream equal to 185.30 cubic feet per second; that the waters of said creek are derived from various springs, lakes, and other natural sources of water supply, and all are tributary to said creek, and lie within the watershed thereof, and at times there is a surplus of waters in excess of said primary waters. It further appears from the record that at different times between the first day of October, 1892, and the fifteenth day of July, 1896, plaintiffs and their predecessors in interest located the reservoirs mentioned, viz., Red Pine Reservoir No. 1, Red Pine Reservoir No. 2, White Pine Reservoir No. 3, Minnie Lake Reservoir, Alta Reservoir, and Gadd Valley Reservoir. Plaintiffs in due time posted notices of their intention to appropriate for storage in these reservoirs, when completed, the surplus and unappropriated waters that flowed in and through the several reservoir sites mentioned, had surveys made of the sites, and filed plats of the same in the United States Land Office at Washington, D. C. Some work was done on the several sites thus claimed and located. Small embankments of earth and stone were thrown up across the outlets of the lakes, trenches were dug therein, and headgates constructed, so that a portion of the natural storage water could be drained off. All of these reservoir sites except Alta and Gadd Valley are small natural lakes situated on and near the head of tributaries of Little Cottonwood creek. These lakes, which are nothing more than small basins in the canyons, of a few acres each, are supplied and filled with waters which eventually find their way into said creek. The defendants concede the right of plaintiffs to dam up the outlets of the lakes and hold back the surplus and unappropriated waters that flow therein, but deny their right to lower the outlets and drain the lakes of water which the plaintiffs have not held back and stored by means of their artificial embankments; whereas the plaintiffs claim the right to not only draw off the surplus waters stored by them, but to cut down the natural barriers at the outlets, and drain the lakes of the water which nature has stored therein. This appears to be about the only material controverted question involved in the case, as the evidence shows that the Alta and Gadd Valley reservoirs are uncompleted, and in no condition to hold water.

A. F Doremus, the state engineer, was called as a witness, and testified that he made an examination of the lakes in 1901, and found that Red Pine No. 1 is formed by a natural...