Garns v. Rollins

• Decision Date: 20 June 1912
• Docket Number: 2343
• Citation: 125 P. 867,41 Utah 260
• Court: Utah Supreme Court
• Parties: GARNS v. ROLLINS

125 P. 867

41 Utah 260

GARNS v. ROLLINS

No. 2343

Supreme Court of Utah

June 20, 1912

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by Sarah E. Garns against C. O. Rollins.

Plaintiff appeals from a judgment granting insufficient relief.

REVERSED AND REMANDED WITH DIRECTIONS.

Edwards & Ashton for appellant.

Jas. F Smith for respondent.

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

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This is an action involving the title and the right to use certain waters which accumulate upon plaintiff's land. The appeal is on the judgment roll alone. The findings of fact, all of which respond to and are within the issues presented by the pleadings, in substance, are:

That the source of the water in controversy is on a fourteen-acre tract of plaintiff's land. That for more than thirty years the water has been collected in a body on said land thereby forming a pond or reservoir. That the pond is supplied by "a large number of streams of water arising and seeping out from and upon the soil of said land in the form of springs, seepage, and percolation," and by an artesian or flowing well which was sunk upon said land by plaintiff's predecessors in interest about fifteen years prior to the bringing of this action. That the well has continuously flowed about forty gallons of pure water per minute. That during the last thirty years plaintiff's predecessors in interest in irrigating and cultivating the easterly portion of the land on which the pond is situated "have greatly increased the flow of percolating and seepage water into said reservoir or pond. That during each and every year of the period last above mentioned the plaintiff's predecessors in interest have expended large sums of money and labor in cleaning out, enlarging, and improving said pond." That for thirty years plaintiff and his predecessors in interest have maintained an artificial water-course leading from said pond and running in a westerly direction to the west line or boundary of the land, and during all of said time have used said artificial water-course to convey the water collected in the pond to a thirty-six-acre tract of plaintiff's land adjoining the parcel upon which the pond is situated and there used it in irrigating the easterly portion of the thirty-six-acre tract of land.

"That said use during all of said months (April, May, June, July, August, and September) for the last thirty years has been continuous, uninterrupted, adverse, open, peaceable, and under claim of right, and that the right of the plaintiff and her predecessors in interest has not during all of said time, except in the year 1911, been challenged or questioned by the defendant or any one else. That after having devoted said waters to the uses aforesaid on the easterly portion of the tract of land second above described, the portion designated in plaintiff's complaint herein on file as block 5 of Steuben Rollins' survey became saturated and soaked with water, and that considerable quantities have seeped and percolated through the soil and have arisen to the surface thereof, and some of the same have, during the early months of each year during said nine years' period and during the whole of the wet season, accumulated upon the surface of that portion known and designated in plaintiff's complaint as meadow or lowland and from thence into Rollins' lane, or right of way. That plaintiff and her predecessors in interest, in order to drain said block 5 of Steuben Rollins' survey and convey away therefrom the waters accumulating therein and thereon as aforesaid, constructed at divers times during said period, as their necessities required, certain artificial water-courses through which said waste or percolating waters were conveyed into a ditch running along the easterly side of said easement and right of way belonging to the defendant and G. W. Rollins, and that said last-mentioned waters have, during the irrigating seasons of each and every year for the last nine years, flowed in a northerly direction along the said easement and right of way and have been used in the irrigation of the defendant's land. That all of the waters so flowing into said easement and right of way during said period of nine years have been percolating, draining, and artificially developed waters. That on or about the 1st day of June, 1911, and divers times since that date, contrary to and against the will of the plaintiff, defendant, in disregard of the plaintiff's rights, knowingly and wrongfully diverted the waters flowing into said artificial watercourse leading in a westerly direction across the Rollins right of way to said block 4 of Steuben Rollins' survey, being the westerly portion of the parcel of land second above described. That the plaintiff was thereby deprived of the use and benefit of the waters developed by her and flowing from her land as aforesaid. That the defendant is the owner of a farm lying a short distance north of plaintiff's property with its easterly end line identical with the westerly side line of the easement and right of way belonging to the defendant and G. W. Rollins."

The conclusions of law deduced by the court from the findings of fact, so far as material to the questions presented by this appeal, are as follows:

"No. 2. That the plaintiff is entitled to a decree quieting and confirming her title to the waters described in her complaint herein on file as against the defendant and all persons claiming or to claim the same or any part thereof under or through said defendant, subject to the condition that the said waters shall be beneficially used by the plaintiff or her successors in interest, exclusively upon the land described in her said complaint.

"No. 3. That the plaintiff is entitled to an injunction perpetually enjoining the defendant and all persons claiming under or through him from interfering with the plaintiff or her successors in interest in using the said waters or any part so far as the plaintiff or her successors in interest use or seek to use the same beneficially for irrigation and culinary purposes exclusively on the land described in her complaint or upon any portion thereof.

"No. 4. That the defendant is the owner of a farm lying north of the land described in plaintiff's complaint, which said farm is west of the Rollins lane or easement, and judgment is hereby ordered to be entered accordingly. That the defendant is entitled to the use on said farm of all of the waters which arise, emanate, percolate, seep through, and spring from the land described in plaintiffs complaint which are not necessary to the beneficial irrigation and cultivation of plaintiff's said land."

The decree of the court, so far as material here, provides:

"That the plaintiff have judgment against the defendant, quieting and confirming her title to the waters arising, emanating, percolating, seeping through, and springing from the soil of the land described in plaintiff's complaint herein on file as against the defendant and all persons claiming or to claim the same or any part thereof under or through said defendant, subject, however, to the condition that the said waters shall be used by the plaintiff or her successors in interest exclusively upon the land described in her said complaint and herein particularly described. It is hereby ordered, adjudged, and decreed that the defendant have judgment, and he is hereby decreed the use of all of the waters which arise, emanate, percolate, and seep through and spring from the soil of the land described in plaintiff's complaint which are not necessary to the beneficial irrigation and cultivation of plaintiff's said land. That the plaintiff is entitled to an injunction perpetually enjoining the defendant and all persons claiming under or through him from interfering with plaintiff or her successors in interest in using said waters or any portion thereof, so long as plaintiff or her successors in interest use or seek to use the same beneficially for irrigation and culinary purposes exclusively on the land described in her said complaint, or upon any portion thereof. That the plaintiff's title to said waters, subject to the right of the defendant to devote the same or portions thereof to the irrigation and cultivation of his said farm when the same are not required for the beneficial irrigation and cultivation of plaintiff's land, is adjudged to be quieted against all other claims, demands, or pretensions of the defendant, who is hereby perpetually estopped and enjoined from setting up any further or other claims thereto."

Plaintiff appeals.

McCARTY, J. (after stating the facts as above).

Appellant in her assignments of error, assails the conclusions of law wherein the court finds that her title to the water in dispute is "subject to the condition that said water shall be beneficially used by the plaintiff or her successors in interest exclusively upon the land described in her said complaint," and that the defendant is entitled to the use of all the water in question "which is not necessary to the irrigation and cultivation of plaintiff's said land." Appellant also objects to that part of the judgment in which defendant is "decreed the use of all the waters which arise, emanate, percolate, and seep through and spring from the soil of the land described in plaintiff's complaint which are not necessary to the beneficial irrigation and cultivation of plaintiff's said land." The contention made by appellant is that the conclusions of law and that part of the decree covered by the assignments of error are not supported by, nor do they respond to, the findings of fact made and filed in the cause. And she further contends that, under the facts as found by ...