Cornish Town v. Koller

• Decision Date: 20 July 1988
• Docket Number: No. 19981,19981
• Citation: 758 P.2d 919
• Parties: CORNISH TOWN, a Utah municipal corporation, Plaintiff, Appellee, and Cross-Appellant, v. Evan O. KOLLER and Marlene B. Koller, husband and wife, Defendants, Appellants, and Cross-Appellees.
• Court: Utah Supreme Court

Page 919

758 P.2d 919

CORNISH TOWN, a Utah municipal corporation, Plaintiff, Appellee, and Cross-Appellant, v. Evan O. KOLLER and Marlene B. Koller, husband and wife,

Defendants, Appellants, and Cross-Appellees.

No. 19981.

Supreme Court of Utah.

July 20, 1988.

George W. Preston, Logan, for defendants, appellants, and cross-appellees.

Reed L. Martineau, Jody K. Burnett, Salt Lake City, for plaintiff, appellee and cross-appellant.

HALL, Chief Justice:

I

Cornish Town ("Cornish") initiated this action after a dispute arose over certain water rights and rights of way. Kollers counterclaimed for expenses associated with installing a waterline between Pearson Spring and their home. The case was tried to the court, without a jury. Thereafter, the court, ruling from the bench, entered findings of fact and conclusions of law providing in pertinent part:

FINDINGS OF FACT

....

3. The Defendants are the owners of real property surrounding the Pearson Spring ... and presently receive water for culinary and domestic purposes at their home through a private water line which is connected to the Plaintiff's line that carries water from the Pearson Spring to the Plaintiff's reservoir and treatment facilities.

4. That by deed ... [certain named parties, including Defendants' predecessor in interest] conveyed to Cornish Town [among other things, certain water rights].

5. Defendants['] Predecessor in interest reserved the right to use water for human drinking and stock watering purposes. This use to be confined to a water 6. That the Defendants acquired the right, title and interest ... as it relates to the water right to be used through the 3/4 inch tap.

flow through a 3/4 inch tap and Grantees (Cornish) agreed to pipe the said water to the home of Lars Pearson, Defendants['] predecessor, for culinary and domestic purposes. All water to be measured through a culinary water meter. The tap is situated approximately 50 feet West of the Defendants' residence.

7. That Emma Marie Pearson Dobbs, the owner of an undivided one-fifth interest in and to the Spring set forth above, did not convey her interest to Cornish Town, but by deed conveyed such water rights and real property to the Defendants herein as set forth in a deed....

....

13. The Court finds from the testimony of the witnesses that Cornish Town has not be [sic] reason of the nature of its improvements in the Pearson Spring Basin area, effectively controlled and appropriated all of the water coming from the Pearson Spring area.

14. The Pearson Spring water flowing down Butler Hollow has been beneficially used by the Pearsons and their successors the Kollers.

15. That Plaintiff's evidence has failed to show a five-year period of non-use from the Pearson Spring.

16. That the Defendants are the owners of 1/5 interest in the Pearson Spring to cover the irrigation period from April 1st to September 30th, together with year round stock watering rights as set forth in the Kimball Decree....

17. That Defendants have the right to have their share of water from Pearson Spring flow into Butler Hollow during the irrigation period as described above and for stock watering.

18. That the Defendants are the owners of the rights to culinary water from the Pearson Spring as set forth in the quit claim deed from Emma Pearson.... By reason thereof the Defendants are not an appropriator of the water and Defendants' rights are fixed by the grant in the deed to Emma Pearson, et al[.] and her successors in interest....

....

20. The Court finds that the Defendants are entitled to receive the water but that Defendants are not entitled to say where they receive it from, and that the source is not restricted solely to the Pearson Spring. The Court finds that the Plaintiff is entitled to determine where the union with the Cornish line will be located and shall thereafter provide and pipe through a 3/4 inch tap to the home of the Defendants, culinary water as set forth in the deed.

21. The Court finds that the Pearson Spring water supply is not one single spring, but may be composed of several springs.

22. That Defendants' Counterclaim for damages for the installation of a pipeline is hereby denied.

....

CONCLUSIONS OF LAW

....

3. That judgment should enter decreeing that the Defendants are the owners of a right to a one-fifth in Pearson Spring to cover the irrigation period from April 1st to September 30th of each year and for stock watering and domestic purposes as adjudicated in the Kimball Decree to flow down Butler Hollow.

4. That Defendants are not an appropriator of the tap water from the Cornish Municipal water system, but are the owners of a right to culinary water as evidenced by a grant in a deed ... from Emma Pearson....

5. The Court concludes that the grant of the water right is not restricted solely to the source of water of Pearson Spring. The Court further concludes that the Plaintiff is entitled to determine where the union will be with the Cornish line and to provide and pipe through a 3/4 inch tap to the home of Defendants for the purposes set forth in the grant.

6. That Defendants are not entitled to prevail on Defendants' Counterclaim.

Judgment was entered in accordance with these findings, and the parties brought their respective appeals.

II

Kollers first argue on appeal that the trial court erred by finding that Cornish had the right to determine the point of connection of Kollers' culinary waterline with the Cornish water system. They claim their right to receive culinary water arises from a reservation in a deed given by Kollers' predecessors in interest (Pearsons) to Cornish wherein water rights in and to "one certain unnamed spring," now known as the Pearson Spring, were conveyed. Accordingly, Kollers contend that they are entitled to receive their water from the Pearson Spring and not Cornish's general culinary water supply. Cornish responds that the deed is silent concerning the location of the tap with the point of connection to Cornish's water system.

The deed, wherein several members of the Pearson family granted "[a]ll the right, title and interest ... in all water and water rights in and to one certain unnamed spring," which is now known as Pearson Spring, contains the following provision:

Grantors reserve the right to use water for human drinking and stock-watering purposes. This use to be confined to a water flow through a 3/4"' tap, and grantee agrees to pipe the said water to the home of Lars Pearson, for culinary and domestic purposes. All water to be measured through a culinary meter.

Resolution of this first issue requires construction of the grant. Utah Code Ann. § 73-1-10 (1980) provides that water rights shall be transferred by deed in substantially the same manner as real estate, with an exception which is not relevant here. Accordingly, the rules governing the construction of deeds generally apply when construing an instrument conveying water rights. ¹ The primary rule regarding construction of deeds is to give effect to the intentions of the parties as expressed in the deed as a whole. ² In this regard, we have stated that in the absence of ambiguity, the construction of a deed is a question of law for the court. ³ In such a case, we are not bound by the trial court's determination of the meaning of the writing. ⁴

In the instant case, the trial court concluded that Kollers' water right under the deed was not restricted "solely to the source of water of Pearson Spring." However, the plain language of the deed indicates that the grantors "reserved" in themselves the water rights indicated. By its very nature, a "reservation" is a clause in a deed or other instrument of conveyance by which the grantor creates and reserves to himself some right, interest, or profit relative to the estate granted. Ownership is one of the conditions which must exist as the basis of a valid reservation. ⁵ Since Kollers' predecessors in interest, the Pearsons, did not own the Cornish water system, the Pearsons could not have "reserved" to themselves rights to water from that system. Indeed, Cornish's brief appears to indicate that its water system was not even built at the time of the conveyance. Instead, the Pearsons must have "reserved" in themselves rights in the water which was the subject of the conveyance, namely, the water flowing from Pearson Spring.

In view of this analysis, the arguments advanced by Cornish are unavailing. If Cornish did not desire to supply water under the deed from a specific source of water, it should not have accepted a deed containing this reservation. Accordingly, we find Kollers' first point to have merit, requiring a partial reversal of the judgment in this case.

III

Kollers' next point is that the trial court erred by finding that the "Pearson Spring water supply is not one single spring, but may be composed of several springs." Kollers' argument fails for several reasons. First, review of findings of fact is controlled by rule 52(a) of the Utah Rules of Civil Procedure. To mount a successful challenge to trial court findings under that rule, an appellant must marshall the evidence supporting the trial court's findings. Only then can we determine whether those findings are clearly erroneous. Because Kollers have failed to make such a showing in this case, the trial court's determination will not be disturbed. ⁶

Second, Kollers have failed to provide the Court with the entire transcript of the proceedings below. This Court has repeatedly held that an appellant may not succeed on a claim of error when relevant portions of the record are not before us; in such a case, the proceedings before the trial court are presumed...