Fuller v. Sharp

• Citation: 33 Utah 431,94 P. 813
• Decision Date: 05 March 1908
• Docket Number: 1760
• Court: Utah Supreme Court
• Parties: FULLER et al. v. SHARP et al

94 P. 813

33 Utah 431

FULLER et al. v. SHARP et al

No. 1760

Supreme Court of Utah

March 5, 1908

APPEAL from District Court, Weber County; J. E. Booth, Judge.

Action by George A. Fuller and others against Milo Sharp and others. Judgment for plaintiffs, and defendants appeal.

AFFIRMED.

W. L Maginnis and John E. Bagley for appellants.

J. N Kimball, George Halverson, and C. C. Richards for respondents.

McCARTY C. J. FRICK, J., concurring. STRAUP, J., dissenting.

OPINION

McCARTY, C. J.

This action was brought by George A. Fuller, D. L. Colvin, and Virgil B. Stallings, as trustees of the Eden Irrigation District, and as individuals suing on their own behalf and on behalf of said district and all the landowners therein, against Milo Sharp, Joseph Carver, and John Stevenson to enjoin them from breaking, or in anywise interfering with plaintiff's dam across the North Fork of Ogden river. Plaintiffs, in their complaint, among other things allege that in the year 1861 the predecessors in interest of the Eden Irrigation District, by means of a dam, diverted and appropriated, for irrigation, domestic, and culinary purposes, all of the waters flowing in the North Fork of Ogden river down to the point of such diversion; that the waters so appropriated have been continuously used by the landowners in the said district each and every season since said appropriation was made; that the amount of water so appropriated from the unappropriated waters of the North Fork of Ogden river is about thirty-two second feet. It is further alleged that on July 27, 1904, the defendants, without right, and against the will of, and without the consent of plaintiffs and the landholders in said district, entered upon the canal of the Eden Irrigation District at a point where the Eden dam turns the waters from the North Fork of Ogden river into the Eden canal, and turned the water from the said canal and dam down the channel of said North Fork, and that the water was thus thereby lost to said irrigation district and to the landholders thereof, to their damage, etc.; that defendants threaten to continue to so divert and run said water down the said channel of the North Fork of Ogden river unless restrained, etc. Milo Sharp and Joseph Carver answered admitting that they opened and removed the Eden dam at the time and in the manner alleged in the complaint, but justified as the agents and officers of Plain City Irrigation Company, which company, they alleged, had, by prior appropriation, acquired a title to the waters of North Fork superior to any right or claim acquired by the Eden Irrigation District. Joseph Stevenson answered admitting that he and the other defendants broke and removed the Eden dam, but justified as the agent of the Western Irrigation Company, a corporation, which company, he alleged, had acquired, by prior appropriation, a right to the use of the waters of North Fork which was paramount to any right, title, or interest of plaintiffs in and to said stream. By stipulation, the Plain City Irrigation Company and the Western Irrigation Company were made parties defendant and it was also stipulated that the complaint of the plaintiffs should stand as a complaint against said companies and that the answer of Milo Sharp and Joseph Carver should stand as the answer of the Plain City Irrigation Company and that the answer of Joseph Stevenson should be considered and treated as the answer of the Western Irrigation Company. As a further defense the defendants allege that the questions and matters involved in this action were adjudicated by the district court sitting in Weber county on the 10th day of September, 1892, in an action wherein William Geddes and others, suing as trustees of the Plain City Irrigation Company, were plaintiffs and the Eden Irrigation District (plaintiff herein) and the predecessors in interest of the Western Irrigation Company and numerous other parties, appropriators of the waters of Ogden river, were defendants.

As conclusions of law in that case the court found: "That the first appropriator of water from a natural stream for beneficial purposes has a prior right thereto to the extent of such appropriation; that as between the parties who appropriated water from Ogden river as above found, their several rights took rank according to the several appropriations . . . ; that the right of the several parties to this suit should be decreed to them, including amount and quantity according to the dates of appropriation and the capacity of the ditches constructed as are stated in the findings of fact." The decree, so far as material here, recites: "It appearing therefrom (the findings of fact and conclusions of law) that the plaintiffs are entitled to the relief demanded as hereinafter decreed, it is ordered, adjudged, and decreed that the following named parties to this action are the owners herein stated, that is to say: North Ogden Irrigation Company. Ditch nine feet wide on top; eight feet wide on bottom; 2.5 feet deep; velocity sixty feet per minute. Date of appropriation January 1, 1858. Plain City Irrigation Company, by its trustees. Ditch 12.8 feet wide on top; 7.5 feet wide on bottom; 3.2 feet deep and 0.12 feet fall per one hundred feet. Date of appropriation May 14, 1859. Eden Irrigation District, by its trustees. Ditch seven feet wide on top; seven feet wide on bottom; 1.33 feet deep and 0.64 feet fall per one hundred feet. Date of appropriation June 1, 1862. Harrisville (predecessors in interest to Western Irrigation Company), by its trustees. Ditch 12.8 feet wide on top; 7.5 feet wide on bottom; 3.5 deep and 0.12 feet fall per one hundred feet. Date of appropriation May 14, 1859. That each of the parties aforesaid . . . are decreed to be entitled to the exclusive use of so much of the waters of Ogden river as will flow in their said ditches, according to the dates of their appropriations; that the first in point of time in appropriating said water and constructing said ditches are entitled to the first right in the waters of said stream and so on successively to the last appropriator; that in case the water is insufficient in said stream at any time to fill all of said ditches, then those having the junior appropriations shall turn into the natural channel of the stream all of the water diverted by them until sufficient is turned into said stream to supply the ditches of any prior appropriators in point of time, and such junior appropriators and all persons acting in aid or assistance of them are hereby enjoined and restrained from diverting any part of the waters of said river from the natural channel thereof, except it be at such times and seasons as there may be a surplus of water in said river after supplying the ditches of all appropriators upon said stream whose appropriations were prior in point of time to said persons so enjoined."

In reply to the answers of defendants plaintiffs allege that from about the 15th day of June to the 1st day of October of each and every year since the Eden Irrigation District and its predecessors in interest constructed the Eden dam in the year 1862, and thereby diverted the water from the North Fork, there has not been sufficient water flowing in said stream at the Eden dam to flow down the natural channel to Ogden river. And they further allege that no water, as they are informed and so charge the fact to be, "from the beginning of the world to this trial, during the irrigation season, could or did flow down the natural channel of said North Fork of Ogden river, or any fork or tributary thereof . . ., that during every such season the said North Fork of Ogden river becomes dry . . . from said (Eden) dam for a distance of over one mile below the same, and that none of the water used by said plaintiffs . . . in any of said irrigation seasons ever at any time does or can ever reach or flow to the main channel of said Ogden river, nor to the canals or ditches of the defendants."

The facts in the case, as disclosed by the record, are about as follows: The Eden Irrigation District is situated on the east side of the North Fork of Ogden river, and its dam (known as the "Eden Dam") turns the water from the North Fork into the Eden canal, from which is irrigated about 1,600 acres. North of the Eden Irrigation District is another district known as "Libert Irrigation District," which contains about 1,500 acres of irrigated lands, and which also gets its supply of water from the North Fork. The dam by which the Liberty Irrigation District diverts and turns the water from the North fork into its canal is about four miles above the Eden dam. Ogden Valley, in which these irrigation districts are situated, is about ten miles in length and from 3 1/2 to five miles in width, and is situated in the eastern part of Weber county. The Ogden river is formed by three branches, one of which flows through Ogden Valley from the north and is called the "North Fork," and one flows from the east and is called the "East Fork," and the other flows from the south and is called the "South Fork." The lands irrigated by defendants are from twelve to fifteen miles lower down on Ogden river and about 1,000 feet lower in altitude than the lands irrigated by plaintiffs, and are situated in Salt Lake Valley, which is separated from Ogden Valley by a range of mountains. The only outlet and drainage for the water of Ogden Valley and the irrigation districts therein located is the Ogden Canyon through which flows the Ogden river. The land in the Eden Irrigation District, with the exception of an occasional wash or gully, is practically even, and slopes gradually from the northeast to the southwest. The land situated near the lower end of the district and a short distance north of the junction of the North and...