Glover v. Utah Oil Refining Co.

• Decision Date: 06 September 1923
• Docket Number: 3998
• Citation: 62 Utah 174,218 P. 955
• Court: Utah Supreme Court
• Parties: GLOVER v. UTAH OIL REFINING CO

218 P. 955

62 Utah 174

GLOVER v. UTAH OIL REFINING CO

No. 3998

Supreme Court of Utah

September 6, 1923

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by M. Glover against the Utah Oil Refining Company. Judgment of dismissal, and plaintiff appeals.

AFFIRMED.

J Louis Brown, of Salt Lake City, for appellant.

Ball Musser & Robertson, of Salt Lake City, for respondent.

THURMAN, J. WEBER, C. J., and GIDEON and CHERRY, JJ., concur. FRICK, J., did not participate.

OPINION

THURMAN, J.

This case is a sequence of the case of Horne v. Utah Oil Refining Co., hereinafter referred to as the Horne Case, 59 Utah 279, 202 P. 815, recently decided by this court.

The plaintiff in this case was also one of the plaintiffs in the Horne Case, and, as will be seen by reference thereto, plaintiffs therein, including this plaintiff, were the owners in severalty of certain city lots within an artesian district situated in Salt Lake City, and upon each of said lots the several owners thereof had driven one or more artesian wells and thereby secured a supply of water which was used for beneficial purposes. The Utah Oil Refining Company, defendant in that case, and also defendant here, was likewise the owner of a lot in said artesian district, 10 rods square in area, upon which it had driven several wells, each of which was of greater capacity than any of the wells driven by the plaintiffs. The real grievance complained of in the Horne Case was that, owing to the increased number and capacity of defendant's wells, the supply of water in the district was being rapidly exhausted and the pressure thereby becoming so reduced that the plaintiffs were being deprived of water to which they were entitled, to their great and irreparable injury. It was further alleged in the complaint in that case that the purpose of defendant was, not to use the water from its wells on the land upon which the wells were located, but to conduct the water beyond the boundaries of said artesian district to its oil refining plant and there use it for commercial and manufacturing purposes. Plaintiffs prayed for injunctive relief. It is not necessary to state defendant's contention in that case. It is sufficient to say that the trial court entered judgment for the principal relief prayed for, from which judgment defendant appealed. In this court, on the appeal, we held that each of the owners of lots in said artesian district, including the defendant, was entitled to a quantity of said water in proportion to the surface area of his land as long as he put the water to a beneficial use. The question as to whether or not the defendant had the right to convey its portion of the water beyond the boundaries of the artesian district in which its land was situated was not determined by the court. There is a suggestion, however, in the opinion of the court that the doctrine enunciated in the case of Cohen v. La Canada Land, etc., Co., 142 Cal. 437, 76 P. 47, that percolating waters might be conveyed away for use on alien lands if it could be done without injury to an adjoining owner, appeared to be "a just and equitable application of the doctrine of reasonable use."

The plaintiff in the case at bar is the owner of a lot in the artesian district in question, and has driven a well thereon, and alleges that according to the surface area of her lot as compared with the whole surface area of land in said artesian district she is entitled to use, and has used, 6.58 gallons of water per minute of time. She further alleges, in substance, that by virtue of her ownership of said lot she is entitled to an additional quantity of said water which, together with the 6.58 gallons per minute, amounts in the aggregate to such a proportion of the entire waters of the district as the surface area of her lot bears to the surface area of all the lots owned by persons actually using water for beneficial purposes on their said lots. In other words, plaintiff's claim, as alleged in her complaint, is based upon the theory that the waters of the artesian district belong to the owners of the land therein who are using the water upon their land for beneficial purposes, and should be allotted to such persons in proportion to the surface area owned by such persons to the exclusion of the other lot owners who are not using the water upon their lands within said district. The complaint of plaintiff further shows that she can beneficially use, and intends to use, 15 gallons of water per minute upon her said lot, and that that quantity of water is necessary for the purpose for which it will be used. The complaint alleges that defendant has purchased, or contracted to purchase, from more than 100 lot owners in said artesian district their rights to the water and purposes driving wells on said lots and conducting the waters thereof to a point beyond the boundaries of said artesian district and there use the same for commercial and manufacturing purposes. Plaintiff prays that defendant be enjoined from using any of said waters for any purpose beyond the limits of said district, and that plaintiff be decreed the right to use an additional quantity of said waters in accordance with her claim as above set forth.

Defendant filed a general demurrer to the complaint, and the court sustained the demurrer. Plaintiff elected to stand upon her complaint. The court entered judgment dismissing the action, and plaintiff appeals.

As manifestly appears from the foregoing statement, there is but one question to be determined. Has the defendant the right to purchase from the owners of lots in said artesian district their rights to the water owned by them, and conduct the water to its oil refinery beyond the limits of said district, and there use the same?

As heretofore stated, it was suggested in the opinion in the Horne Case that such appeared to be a just and equitable application of the doctrine of reasonable use so long as the owners of adjoining lots in said district were not injured thereby. We still adhere to that view of the question, and perhaps in the last analysis the real question is: What would constitute an injury to adjoining owners or persons owning water rights within said artesian district? This precise question has never been determined in this jurisdiction, and we think it will be conceded that little or no assistance can be derived by an examination of cases from other jurisdictions. Much is said in many of the cases, mostly in the nature of dicta, against the right to convey such water to alien lands away from the land in which the waters are found. Much is also said, as in the Cohen-La Canada Case, supra, in favor of the right so long as correlative owners are not injured thereby. But little or nothing has been said as to what, in such cases, constitutes an injury. This question, however, would be simple and free from complication were it not for the claim made by plaintiff that she is not only entitled to 6.58 gallons of water per minute, which would be the limit of her right if every other lot owner was using his correlative portion of water within the district, but she also claims that if any co-owner disposes of his right to one who intends to convey it to a point outside of the district then the right of the would-be purchaser immediately becomes the property (to the extent of their reasonable necessities) of those who remain and continue to use the water upon their lots. It is this claim of plaintiff that complicates the question as to what constitutes an injury to an adjoining owner. If plaintiff's contention was that defendant contemplated taking a portion, or all, of plaintiff's 6.58 gallons of water per minute, the injury would clearly appear, and the complaint would unquestionably state a cause of action.

Counsel for appellant assumes in his brief that the question as to the right of correlative owners in and to the waters of an artesian district to convey them away to be used upon alien lands was settled and determined by the decision in the Horne Case and quotes from the opinion, at page 301 of 59 Utah at page 824 of 202 P., the following language:

"The consensus of opinion among the authorities seems to be that the doctrine of correlative rights or reasonable use of percolating water includes the idea that the water cannot be conveyed away, either for waste or use, from the land in which the water is found in its natural state. In that respect it is somewhat analogous to the doctrine of riparian rights."

The language quoted by counsel, standing alone, does not fairly reflect the views of the court, for immediately following the excerpt quoted, and in the same connection, the court says:

"In Cohen v. La Canada L. Co., supra, a California case subsequent to the Walkinshaw Case, it was held that percolating waters may be taken for use upon other land if it can be done without injury to adjoining owners. This seems to the court to be a just and equitable application of the doctrine of reasonable use. This question is perhaps of no practical importance in the case at bar, and it is only referred to here lest it might be inferred that we are committed to the proposition that in no case can percolating water, as matter of right, be conveyed to alien lands. The question is reserved until it becomes necessary to determine it."

The language of the paragraph, considered as a whole, is far from unqualifiedly indorsing counsel's contention. It is somewhat singular that a proposition which was expressly reserved by the court for future determination should be considered as having been conclusively settled and determined.

It is unquestionably true that the consensus of opinion is as stated in the language first above quoted. It is also true...