Gill v. Tracy (Jensen, Intervener)

• Decision Date: 15 August 1932
• Docket Number: 5136
• Citation: 80 Utah 127,13 P.2d 329
• Court: Utah Supreme Court
• Parties: GILL et al. v. TRACY et al. (JENSEN, Intervener)

13 P.2d 329

80 Utah 127

GILL et al. v. TRACY et al. (JENSEN, Intervener)

No. 5136

Supreme Court of Utah

August 15, 1932

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Suit by J. H. Gill and others against William E. Tracy and others, in which Amos B. C. Jensen intervened. From the decree defendant L. B. Call and intervener appeal.

AFFIRMED.

B. C Call, of Brigham, for appellants.

Stephens, Brayton & Lowe, of Salt Lake City, for plaintiffs respondents.

Henderson & Johnson, of Ogden, for defendants respondents.

FOLLAND, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This case involves the right and title to the use of the waters of Johnson creek in Box Elder county, Utah. Johnson creek has its source in the north slope of the Clear Creek Mountains located in the northwest corner of the state and courses northwesterly through sections 16, 9, and 4, township 14 north, range 15 west, S. L. B. & M., and thence into Idaho through section 30, township 16 south, range 25 east, Boise Meridian, and thence to the Raft river. The stream fluctuates greatly in the size of its flow. The only measurements we have of it were made between May 1st and September 30th of the years 1928 and 1929. The highest flow measured in 1928 was on May 15th of 7.63 cubic feet per second. The lowest flow was September 7th of .38 cubic feet per second. It fell below 5 cubic feet per second on May 31st and below one cubic foot per second on July 15th. In 1929 the highest flow was May 26th, of 12.38 cubic feet per second. This, however, does not indicate any continuous flow of that size as the flow was 8.62 cubic feet per second on May 20th and 8.62 cubic feet per second on May 31st, the only other times measured immediately before and immediately after May 26th. The lowest flow of that year was .61 cubic feet per second, August 26th. The stream flow fell below 5 c. f. s. June 26th and below one c. f. s. July 31st.

The case was commenced by J. H. Gill, Ernest V. Gill, and Robert F. Gill as plaintiffs. The original defendants were William E. Tracy, Henry Tracy, R. E. Hamilton, and L. B. Call. Amos B. C. Jensen filed a complaint in intervention. After trial, but before judgment, John Witbeck filed a petition for substitution, setting out that he had purchased the land and water holdings of the defendant William E. Tracy. The decree awarded primary water rights up to one c. f. s. for culinary, domestic, and irrigation purposes during the entire irrigation season to William E. Tracy, whose appropriation dates from 1882, and to J. H. Gill, whose appropriation dates from 1897, in the proportions of one-sixth to Gill and five-sixths to Tracy; and two c. f. s. each of the high waters above one c. f. s. and up to five c. f. s. between April 1st and October 15th to William E. Tracy and J. H. Gill. These rights originated before May 1, 1903.

The waters over and above five c. f. s. were awarded as follows, with priority in the order named: One-half of a c. f. s. to Ernest V. Gill by virtue of a filing with the state engineer of date January 18, 1916; and one c. f. s. to Robert F. Gill by virtue of a filing with the state engineer of date April 15, 1918; and one-half c. f. s. to J. H. Gill by virtue of a filing with the state engineer of date April 16, 1918. It was adjudged that appellants L. B. Call and Amos B. C. Jensen have no rights to the waters of Johnson creek except that they are awarded culinary and domestic rights in any of the waters which flow in the stream during the entire year, and it was ordered that the waters be permitted to run in the stream without obstruction after October 15th and before April 1st of each year, and except that L. B. Call "is the owner of any water right conveyed to her by William E. Tracy by deed dated June 26, 1915, described as irrigation water right." From this decree and judgment, the defendant L. B. Call and intervener Amos B. C. Jensen appeal. Appellants challenge the findings claiming that they, in certain material particulars, are not supported by the evidence and that the conclusions of law and the judgment are against law; and contend that appellants should each be awarded certain specific water rights for irrigation purposes in addition to the culinary and domestic rights awarded them.

Respondents have filed a motion to dismiss the appeal for the reason that no notice of appeal was served on either of defendants Henry Tracy or R. E. Hamilton. The rule, which is well established in this state, is that it is incumbent upon appellants in order to confer jurisdiction on this court to serve the notice of appeal on all parties to the action not joining as appellants who may be adversely affected by either a modification or a reversal of the judgment. Comp. Laws Utah 1917, § 6996; Commercial National Bank v. U. S. Savings, Loan & Building Company, 13 Utah 189, 44 P. 1043; Rache v. Stanley, 15 Utah 314, 49 P. 648; Blyth & Fargo Co. v. Swenson, 15 Utah 345, 49 P. 1027; Stephens v. Stevens, 27 Utah 261, 75 P. 619; Nelden v. Commercial National Bank, 31 Utah 42, 86 P. 498; Griffin v. So. Pac. R. R. Co., 31 Utah 296, 87 P. 1091; Walker Bros. v. Skliris, 34 Utah 353, 98 P. 114; Allen v. Garner, 45 Utah 39, 143 P. 228; Langton v. Peery, 48 Utah 112, 159 P. 49; Plough v. Nelson, 49 Utah 35, 161 P. 1134; Gunnison Irr. Co. v. Highland Canal Co., 52 Utah 347, 174 P. 852; State Bank v. Mortensen, 66 Utah 290, 241 P. 1055; Salina Canyon Coal Company v. Klemm, 76 Utah 372, 290 P. 161; Wasatch Livestock Loan Co. v. Jones (Utah) 10 P.2d 1070. Conversely, a party who will not be so affected by a reversal or modification of a judgment need not be served, Castle v. Delta Land & Water Co., 58 Utah 137, 197 P. 584; and in the event a party has appeared in the action but after appearance ceased to have any interest in the subject-matter he need not be served with notice of appeal. Commercial National Bank v. U. S. Savings, Loan & Building Co., supra; Stephens v. Stevens, supra. Unless the defendants, Henry Tracy and R. E. Hamilton, or either of them might be adversely affected by reversal or modification of the judgment, the motion must be denied. It is, we think, evident from the record that neither can be so affected.

The complaint was filed in 1919. The answers of the defendant were filed in the same year. The cause was tried in February of 1928, and judgment was entered February 10, 1930. Henry Tracy and R. E. Hamilton each answered in the cause setting up a claim to the waters of Johnson creek. Neither of them appeared at the trial and no evidence was given on behalf of either; and neither of such defendants are shown to have had any title or right to the use of any of the water of the stream. There is nothing in the record except the averments in their answers to indicate ownership of any land or right to the use of any of the water of the creek. Neither of these defendants in his answer described any land to which the waters claimed by him were appurtenant or on which it had been used, but merely set up, generally, that he owned lands, without describing them, on which water had been used and claimed a right or title to such waters. The pleadings indicate that Hamilton was claiming as a purchaser of the land and water holdings of William E. Tracy which were afterwards sold to John Whitbeck, who, after trial and before judgment, purchased the William E. Tracy lands and was on petition permitted to appear as a party defendant. The decree awarded water to William E. Tracy without mention of either Hamilton or Witbeck and awards no water to either Hamilton or Henry Tracy or Witbeck. Witbeck, however, was served with notice of appeal. The attorney for appellant is the same person who signed the answer of Henry Tracy as his attorney. No mention is made of either Hamilton or Henry Tracy in the decree nor in the findings except for the following statement in the recital of appearances in the findings: "Henry Tracy and R. E. Hamilton not appearing either in person nor by attorney." It is contended, however, that their claims are identified in interest with those of William E. Tracy. This fact, however, is not affirmatively shown by the pleadings but rests merely on inference. Even if that were true, however, the service of notice of appeal on William E. Tracy would be sufficient service, since Tracy, in that event, would be a trustee for them. It is unfortunate that no finding is made on any issue raised by the answers of these two defendants. It seems they were entirely overlooked or forgotten until it was discovered by respondents that they had not been served with notice of appeal. No complaint is made on this appeal that the findings or judgment were deficient because failing to dispose of the issues raised by their pleadings. Because the record does not show that they or either of them will be adversely affected by modification or reversal of the judgment, the motion to dismiss the appeal is denied.

Coming now to the merits of the cause, we shall discuss the claims of the two appellants separately. L. B. Call claims a water right by reason of a conveyance by warranty deed from William E. Tracy, dated June 26, 1915, of a tract of land of approximately 2 1/2 acres, located in the 133 S.E. 1/4 of section 9, township 14 north, range 15 west, S L. M., which includes a water right described as "together with regulation water right." The decree of the district court states that L. B. Call had no right to the normal flow of Johnson creek for irrigation purposes, except that she "is the owner of any water right conveyed to her by William E. Tracy by deed dated June 26, 1915, described as regulation water right." The finding in this regard was of similar...