Elliot v. Whitmore

• Decision Date: 10 April 1901
• Citation: 65 P. 70,23 Utah 342
• Court: Utah Supreme Court
• Parties: L. A. SCOTT ELLIOT, Appellant, v. GEORGE C. WHITMORE and JAMES WHITMORE, Respondents

65 P. 70

23 Utah 342

L. A. SCOTT ELLIOT, Appellant, v. GEORGE C. WHITMORE and JAMES WHITMORE, Respondents

Supreme Court of Utah

April 10, 1901

Appeal from the Seventh District Court, Emery County.-- Hon. Jacob Johnson, Judge.

Action to determine the rights of the respective parties to the waters of a certain creek and for an injunction restraining defendants from interfering with plaintiff's water rights during the irrigation season. From a judgment for defendants plaintiff appealed.

AFFIRMED.

Messrs Zane & Rogers and John M. Zane, Esq., for appellant.

In equity causes the appellate court "may go behind the findings of the trial court and consider all the evidence decide on which side the preponderance thereof is, ascertain whether or not the proof justifies the findings and decree and make such findings and decree as should be made in the judgment of the appellate court." Whittaker v. Ferguson, 16 Utah 241; Van Pelt v. Park, 18 Utah 141; North Point C. I. Co. v. Utah & S. L. C. Co., 16 Utah 247.

Unless the right to all the waters of Grassy Trail Creek had vested in defendants, the third finding of facts and conclusions of law and the decree appealed from are erroneous. And it is not sufficient that defendants might have the primary right to take all the waters of the creek during dry times, but they must have the right to it all the time without any intervals, and at wet times, at all the times that plaintiff might appropriate it and use it for a useful purpose. The Compiled Laws of Utah, 1888, secs. 2780, 2781.

Under the statute of California and other states, notices of appropriation may be posted and recorded, and the appropriator then has forty days within which to commence his ditch; but he is required to prosecute its construction with reasonable diligence and use the water. Becker v. Marble Creek Irri. Co., 15 Utah 225; Hague v. Nephi Irrigation Co., 16 Utah 421; Murray et al. v. Tingley, 50 P. Rep. 723; DeNecochea v. Curtis, 80 Cal. 397.

The defendants' representations and conduct constitutes an equitable estoppel, an estoppel in pais. Kirk v. Hamilton, 102 U.S. 68; Insurance Co. v. Mowry, 96 U.S. 544, 547 and 548.

We do not think it necessary to multiply authorities on this point. It was not necessary to set up in the complaint the facts constituting the estoppel. It was not necessary at common law, and the statutes of Utah do not require it. 1 Taylor's Law on Evidence, 115 sec. 92; 2 Estoppel and Res Judicata (Herman), sec. 1305, p. 1448.

If at any time the land for which the water was appropriated to irrigate did not require all of the appropriation, the law required the defendants to allow it to run down the creek to plaintiff's land for his use. Compiled Laws of Utah, 1888, division 1 of section 2781; Manning v. Fife, 17 Utah 232.

Messrs. Brown & Henderson for respondents.

We do not dispute the statement made by counsel that in an equity case the court can consider the facts and reverse a decree if it is not justified by the evidence. The Constitution of this State and the statute give the right to appeal in equity cases upon the facts. The rule, however, is that when the district court has found the facts, the Supreme Court will not set them aside unless they are clearly erroneous. The district judge sees the witnesses, hears the testimony and can estimate the value of the witnesses testimony better than the Supreme Court can. McKay v. Farr, 49 P. 649; Stahn v. Hall, 10 Utah 400; Dooly Block v. Transit Co., 9 Utah 31; Whitesides v. Green, 44 P. 1032.

ROLAPP, D. J. BASKIN, J., concurs.

OPINION

ROLAPP, D. J.

STATEMENT OF FACTS.

The complaint in this action was filed September 8, 1887, and alleges that plaintiff is and was the owner of certain described lands in Emery county, and that in July, 1885, for the purpose of irrigating and cultivating said lands, he appropriated all of the waters then running in a stream called Grassy Trail Creek, and that in July, 1885, he diverted and conveyed upon said land all of the waters of said creek except so much as the complaint alleges the defendants are entitled to.

The complaint further alleges that the defendants own land situate above plaintiff's land on the creek; that prior to the above appropriation plaintiff and defendants had made certain appropriations, which the complaint alleges to be as follows: That the defendants were entitled to a primary right to six and one-half acres and no more, and that the plaintiff was entitled to a secondary right to a quantity sufficient to irrigate twenty-five acres, and that the defendants were then entitled to an additional right to irrigate twenty-two and three-fourths acres, "and that, subject to the foregoing rights and appropriations, the plaintiff is entitled to all waters flowing in said creek."

Plaintiff also alleges that a large portion of his land is under present cultivation, and that it is his intention to proceed to further cultivate the entire tract of land owned by him, amounting to about 1,240 acres of land, and that he has already expended several thousand dollars in appropriating and diverting the said waters to the lands, and in making permanent improvements upon the same.

Plaintiff claims that defendants have unlawfully diverted all the waters of said creek from the channel and from plaintiff's land, and refuse to allow any part of the stream to flow down upon his land, and that the defendants threaten to continue such wrongful diversion, to plaintiff's damage.

Wherefore plaintiff prays a decree determining the rights of the parties to the waters of the creek, and for an injunction restraining defendants from interfering with plaintiff's water during the irrigation season.

Defendants' answer denies the material allegations of the complaint and especially that plaintiff in July, 1885, or at any other time, or at all, appropriated all or any of the waters running in Grassy Trail Creek, but on the contrary the defendants allege that in 1879 they diverted for irrigation purposes all and every part of the waters flowing in said creek upon the lands belonging to them; that all of said waters were then and ever since have been necessary for the proper cultivation of their lands, and that they have continuously, during the irrigation season of each year, so diverted all of said waters. Defendants deny specifically that plaintiff at any time diverted or appropriated a sufficient or any quantity of the waters of said creek to irrigate twenty-five acres of land, or any amount whatever; and they deny that plaintiff is entitled to any rights in or use of the waters of said creek during the irrigation season; but on the contrary the defendants allege that they are so entitled. Defendants deny the unlawful diversion and damage, and pray that they be adjudged the owners of all the waters flowing in the creek during the irrigation season of each year, and that the plaintiff be enjoined from the use or diversion of any of said water during such irrigation season.

The evidence is very voluminous, and somewhat contradictory, but it shows in substance that the defendants commenced the occupation of their lands in 1878, and that they built a house and corral and erected some fences and cleared some lands for cultivation during the winter of that year. In the spring of 1879 they built a ditch three-fourths of a mile long from the creek in question, and diverted water to the upper part of their lands, and irrigated a few acres, upon which they successfully raised corn. During the winter following defendants cleared some more land in the upper field, and in the spring of 1880 their ditch was somewhat enlarged and straightened, and nearly the whole upper field irrigated and cultivated. That same year the plaintiff began to occupy his land for sheep herding purposes, erected a stable, and used about eleven and one-half acres for meadow said meadow having upon or near it some springs known as Big Springs. In 1881 defendants cultivated and irrigated all of the upper field, and cleared part of the middle field. The plaintiff that year fenced his meadow, and tried to irrigate it by means of the springs, but as they only watered part of the land, he constructed and completed in the fall a small ditch from Grassy Trail Creek to his land, and diverted some water through such ditch, after defendants had used such water. During the following winter the defendants finished clearing their middle field and fenced it, and in the spring of 1882 continued their ditch to such field, and that year cultivated and irrigated both fields. Plaintiff did some work on his ditch that year, and once diverted water from the creek to his meadow, but did not otherwise use the water at all. In 1883 defendants cleared part of their lower field, and cultivated and irrigated the upper and middle fields, while plaintiff failed to use any water on his land that year at all. During the following winter defendants cleared some of their lower field, and continued their ditch to such field. In 1884 they cultivated and irrigated the upper and middle field, and probably a part of the lower field. That year the plaintiff enlarged his ditch, and ran water through it from the creek and onto his pasture. During that winter defendants finished clearing their lower field, and in 1885 they cultivated and irrigated all three fields. In April or May of that year plaintiff and defendant George C. Whitmore met upon the land in question, and some conversation was engaged in between them, the effect of which was that defendants did not intend increasing their cultivation; that there was then a good flow of water in the creek, but that it would soon be less. Plaintiff claims that in addition to this conversation he further told Whitmore that he (p...