Deseret Irr. Co. v. McIntyre, 891

• Court: Supreme Court of Utah
• Writing for the Court: BARTCH, J.
• Citation: 16 Utah 398,52 P. 628
• Parties: THE DESERET IRRIGATION COMPANY, AND THE LEAMINGTON IRRIGATION COMPANY, APPELLANTS, v. SAMUEL McINTYRE ET AL., RESPONDENTS
• Docket Number: 891
• Decision Date: 26 February 1898

52 P. 628

16 Utah 398

THE DESERET IRRIGATION COMPANY, AND THE LEAMINGTON IRRIGATION COMPANY, APPELLANTS,
v.
SAMUEL McINTYRE ET AL., RESPONDENTS

No. 891

Supreme Court of Utah

February 26, 1898

Appeal from district court, Fifth district. E. v. Higgins, Judge.

Action by the Deseret Irrigation Company and another against Samuel McIntyre and others. From an order dismissing the action as to certain defendants, plaintiffs appeal.

This is an action to determine the rights of the plaintiffs and defendants to the waters of the Sevier river, flowing between a certain dam in Sanpete county and the canals of the plaintiffs in Millard county, and for a perpetual injunction to prohibit the defendants from using or in any manner interfering with the water of the river, to which the plaintiffs are entitled. A motion to dismiss, on the ground that the court had no jurisdiction of the cause, supported by affidavit, was filed by defendants Fayette Canal Company, sued as Fayette Irrigation Company, Robbins Dam & Canal Company, and Alfred J. Robbins, sued as Edward Robbins, and A. Thomas Kearnes. The motion was sustained and the action dismissed as to the defendants. Thereupon the plaintiffs appealed.

It is alleged in the complaint, substantially, that the plaintiffs own, by prior appropriation, a portion of the water in Sevier river, and have the right to and did divert the same from the natural channel thereof, by means of dams and ditches or canals in Millard county; that they have the right to regulate, control, and distribute the water owned by them, through their canals, to lands situate in Millard county and owned by their respective stockholders; that the plaintiffs and the defendant the Deseret & Salt Lake Agricultural & Manufacturing Canal Company, in the high-water season, own sufficient of the water flowing in the river to fill their respective ditches, and in the low-water season own all the water flowing in the river channel from a point above the Fayette dam, alleged to have been wrongfully constructed in Sanpete county by the defendant Fayette Irrigation Company, which point is distant about 65 miles above the point of intersection of the plaintiffs' canals with the river; that the Sevier river is a natural stream of water, flowing in its natural course through the counties of Sanpete, Juab, and Millard; that the defendants Fayette Company, Robbins Dam and Canal Company and Robbins and Kearnes claim some interest in the water of the river adverse to plaintiffs' rights, and threaten to continue so to do, and to divert water from the river in derogation of the rights of plaintiffs, and that the parties to this action are the only parties who claim the right to divert water from the river between the points mentioned. From an affidavit in support of the motion to dismiss it appears that the defendant corporations which filed the motion were organized and their stockholders reside and their lands are situate in Sanpete county; that the water alleged to have been wrongfully diverted by them is diverted by means of the Fayette dam and ditches, which are in Sanpete county, and that the defendants Robbins and Kearnes are residents of that county.

Reversed and remanded.

Rawlins, Thurman, Hurd & Wedgwood, for appellants.

Moyle, Zane & Costigan, for respondents.

BARTCH, J., delivered the opinion of the court. ZANE, C. J., and MINER, J., concur.

OPINION

[16 Utah 401] BARTCH, J.

Counsel for the appellants insist that this action was properly brought in Millard county, because the dams and ditches of the plaintiffs, and lands to be irrigated by means of the dams and ditches, are situated in that county, and this regardless of the fact that the principal place of business and residence of the defendants, and their dams and ditches, were in Sanpete county. The respondents, it seems, contend that the cause of action set up consists of certain trespasses on real property situated in Sanpete county, and [52 P. 629] have challenged the jurisdiction of the district court of Millard county to try the cause, by a motion to dismiss the suit, maintaining that under section 5, art. 8, Const., it should have been brought in Sanpete county, where the alleged wrongful acts of the defendants are stated to have been committed. It is further contended, on behalf of the respondents, that section 14, c. 52, p. 219, Sess. Laws 1897, is in conflict with that section of the constitution, and is invalid; and, if their theory be correct, the validity of sections 3181, 3192, 3468, Comp. Laws Utah 1888, will also be drawn in question. The constitutional [16 Utah 402] provision referred to reads as follows: "All civil and criminal business, arising in any county, must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law." This provision was considered in the case of Konold v. Railway Co., 16 Utah 151, 51 P. 256, and we there held:

"The word 'business' was used as a general term, to include causes of action and all other business which might arise in any county, and the manifest intention was that all suits, civil and criminal, should be brought, and the cases tried, in the county in which the causes of action arose, unless a change of venue should be taken in such cases as might be provided by law."

That a case must be commenced in the county where the cause of action arose is therefore no longer open to question in this state, but this court has not yet decided where a case, like the one at bar, shall be commenced, in which it appears that certain acts complained of as wrongful were committed in one county and caused injury in another. The legislature has provided, in section 14, above mentioned, that, upon bringing a suit for the "protection of rights acquired to water, the plaintiff may make any or all persons who have diverted water from the same stream or source." and claim rights adverse to him, "parties to such action," and settle the priorities and rights of all the parties in one suit; and, in such case, if damages are claimed for a wrongful diversion of such water, judgment may be entered therefor, for or against one or more of the plaintiffs, or for or against one or more of the defendants. In an action "concerning joint water rights, or joint rights in water ditches," where no partition is asked, the court may determine the "controversy as if the same were several as well as joint." Evidently, under this provision of the statute, persons claiming water [16 Utah 403] rights adverse to those of the plaintiffs, or who have diverted water from the same stream, may be made parties to a suit to determine their several rights and priorities, even though they reside without the county wherein the suit is commenced, and...