Fisher v. Bountiful City

• Decision Date: 29 November 1899
• Citation: 21 Utah 29,59 P. 520
• Court: Utah Supreme Court
• Parties: JOHN FISHER, ET AL., RESPONDENTS, v. BOUNTIFUL CITY, CHARLES R. JONES, RECORDER, AND JOSEPH L. HOLBROOK, APPELLANTS

59 P. 520

21 Utah 29

JOHN FISHER, ET AL., RESPONDENTS, v. BOUNTIFUL CITY, CHARLES R. JONES, RECORDER, AND JOSEPH L. HOLBROOK, APPELLANTS

Supreme Court of Utah

November 29, 1899

Appeal from the Second District Court, Davis County, Hon. H. H Rolapp, Judge.

Action by plaintiff to have his title to certain water quieted and confirmed, and to have the action of the defendant corporation in levying a tax upon plaintiff's land to pay the expense of distributing the water, and the sale of plaintiff's property for non-payment declared wrongful and illegal. From a judgment for plaintiff, defendant appealed.

Affirmed.

E. A Wilson, Esq., D. O. Wiley, Jr., and Rawlins, Thurman, Hurd and Wedgwood, for appellants.

Cited Secs. 96, 97, 98, and 141, Dillon on Mun. Corp., Vol. 1.

O. W Powers, Esq., D. N. Straup, Esq., and Jos. Lipman, Esq., for respondents.

Plaintiff's right to the use of the water in question is a hereditament appurtenant to land. Irr. Co. v. Ogden City, 8 Utah 496.

The owner of a ditch has the exclusive and absolute power of control and right of enjoyment of the water diverted by and flowing in his ditch. Kidd v. Laird, 15 Cal. 162.

A statute creating a Board of Commissioners and the office of overseer in each township of the several counties of the State to regulate water courses within their respective limits, and the acts amendatory thereof, does not authorize those officers to enter upon private water courses and to disturb the owners thereof in their use and enjoyment. Charnock v. Rose, 70 Cal. 189.

Property in water can only be acquired by grant or prescription as against a riparian proprietor. Crandall v. Wood, 8 Cal. 141.

All the decisions of this State on the question pertaining to a municipality regulating and controlling the water within or leading into its limits, are founded upon and based upon the consent, or acquiescence, of the owners. Springville v. Fullner, 7 Utah 453; Holman v. Pleasant Grove, 8 Utah 78.

Plaintiffs had an accrued and vested right to the water, recognized and acknowledged. Sec. 2780, C. L. 1888, Vol. 2.

And the same shall be maintained and protected. C. L. 1888, Vol. 1, 216.

And a penalty is provided for infringing upon such rights. Secs. 2423, 2969, 4653, C. L. 1888, Vol. 2.

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

OPINION

Miner, J.

STATEMENT OF FACTS.

It appears from the complaint, and the court in substance found that the plaintiffs were the owners in their own right of about 65 acres of land, which was cultivated and used as a homestead, located in the farming district outside of the business part, but within the corporate limits, of Bountiful City. Bountiful City is laid out in streets and blocks, contains about 1,300 population, and was incorporated in 1893.

For more than thirty years prior to the commencement of this action, plaintiffs, and their grantors and predecessors in interest, had appropriated, used, and owned, and had the right to use sufficient water from Barton Creek to irrigate said land, and during all times hitherto were the owners of said water, used it and had the right to use it on said land, and had the open, peaceable, and uninterrupted possession thereof for irrigating said land, and for culinary purposes. Barton Creek is a natural stream flowing through a portion of the city and near plaintiffs' land.

Prior to the incorporation of the city in 1893, plaintiffs and other owners of said water associated together in the name of the Barton Creek Irrigation Company, and annually elected their officers and water master, enacted by-laws, levied taxes or assessments provided by statute for the expenses of the water master and other expenses pertaining to the use of said creek and water rights appurtenant thereto. In the fall of 1892, public meetings were held by the citizens of Bountiful to discuss the propriety of incorporating the city, and a right to control waters, at which meetings plaintiffs were present, and disputed the right of the city to control the waters of the creek. Thereafter, on the first day of January, 1893, Bountiful City was incorporated, and at once assumed the right to control, regulate, and distribute the waters of said creek, and appointed a water master therefor, and levied an annual farm assessment against each farm using the water, including that of the plaintiffs, to pay the expenses of the water master for the distribution of said water by the city, but without the consent and against the protest of the plaintiffs. In each of the years 1894, 1895, 1896, and 1897, said city wrongfully, and without right, assessed and levied a tax of 16 cents per acre on each acre of plaintiffs' property aforesaid, to pay the expenses of regulating, controlling, distributing, and supplying water to said owners from said Barton Creek, within the corporate limits of the city. That plaintiff, John Fisher, refused to pay said tax, his property was advertised and sold in one parcel to pay said tax and assumed debt of plaintiffs, to the defendant Holbrook, and a deed thereof was ordered to be issued to the purchaser by said defendant Jones, the recorder.

The court found the action of the city in taking, controlling, regulating, and distributing the water of the plaintiffs was wrongful and unlawful; that the levying of the tax upon plaintiffs' property to pay the expenses of such regulating, controlling, and distributing of the water, and the sale of the property, was wrongful and illegal, and that the title of said plaintiffs to said premises should be quieted.

A decree as prayed for was granted. The defendants appeal from the judgment, and allege that the findings and decree are not supported by the evidence.

After stating the facts, Miner, J., delivered the opinion of the court.

The principal question to be determined is whether Bountiful City had the dominion and right under the law, to control, regulate, and distribute plaintiffs' water in Barton Creek, which naturally flows through a part of the city, for irrigating and other purposes, and the right to tax the land of the owner to pay the expenses of such regulation, controlling, and distribution.

It was conceded upon the trial that the proceedings relating to the tax levy and sale thereunder, were illegal, and that if plaintiffs owned the land their title should be quieted therein.

Appellants claim that Bountiful City was incorporated under Chap. 4, p. 619, 1 Comp. Laws Utah 1888. Sec. 15 of the act provides for the construction of water works without the limits of the city, and gives certain jurisdiction over the same. Sec. 16 reads, as follows:

"To control the water and water courses leading to the city and to regulate and control the water courses and mill privileges within the city; provided, That the control shall not be exercised to the injury of any rights already acquired by actual owners; and to levy and collect taxes upon all...