Gunnison Irr. Co. v. Gunnison Highland Canal Co.

• Decision Date: 12 June 1918
• Docket Number: 2821
• Citation: 52 Utah 347,174 P. 852
• Court: Utah Supreme Court
• Parties: GUNNISON IRR. CO. v. GUNNISON HIGHLAND CANAL CO

174 P. 852

52 Utah 347

GUNNISON IRR. CO. v. GUNNISON HIGHLAND CANAL CO

No. 2821

Supreme Court of Utah

June 12, 1918

Appeal from the District Court of Sanpete County, Seventh District Hon. J. E. Booth, Judge.

Action by the Gunnison Irrigation Company against the Gunnison Highland Canal Company and others.

From a judgment rendered, the Gunnison Highland Canal Company appeals.

AFFIRMED in part and remanded in part.

Thurman Wedgwood & Irvine for appellant.

Jacob Johnson and Lewis Larson for respondent.

STEPHENS District Judge. FRICK, J. C., and GIDEON, J., McCARTY, J., CORFMAN, J. concurring. THURMAN, J., being disqualified, did not participate.

OPINION

STEPHENS, District Judge.

In this case the Gunnison Irrigation Company, a corporation of Utah plaintiff below and respondent herein, brought an action in the district court of Sanpete County, to quiet title to the right to use the waters of the Sanpitch river and its tributaries. Certain defendants in addition to the defendant and appellant, Gunnison Highland Canal Company, a corporation of Utah were joined in the action below, all of the defendants, including the appellant, being joined because of adverse claims alleged. From the decision by the trial judge, after a full hearing upon the issues raised by the pleadings, this appeal is taken by the Gunnison Highland Canal Company. No appeal was taken by the other defendants. The appeal was once decided, and a written opinion filed December 1, 1916, prior to the enlargement of this court by chapter 54, Laws of Utah 1917. Since that date, however, a motion for a rehearing has been submitted and granted, and the case reheard before the court as now constituted. Therefore the former opinion, which was not published, is superseded by this opinion, which will stand as the final action of the court.

As they appear from the evidence and findings, the facts in this case are as follows: Over a long period of years next preceding 1888, certain land-owning farmers of Sanpete County, by appropriation and application to a beneficial use upon their lands of the waters of the Sanpitch river and its tributaries, acquired primary rights to the use of such waters for irrigation. In 1888 these primary rights were assigned by the owners to the respondent company in exchange for shares of stock entitling the holders to the use of water. The Sanpitch river, in common with most of the small streams of the arid regions, has excessively high waters in the early part of the irrigation season, much more than sufficient in volume to satisfy the needs of the respondent at such time; but the flow of the river later in the season is insufficient to supply the respondent's later needs. Therefore in 1888 the respondent constructed a reservoir across the channel of the Sanpitch river for the purpose of storing from the excessive flow of the early season an amount of water in excess of its needs for that time, but to be used during the low-water period to follow. After the construction of this reservoir the defendants below and the appellant also acquired by appropriation and application to a beneficial use upon their lands, respectively, secondary and tertiary rights to the use of such waters of the streams in question as were in excess of the amount appropriated and beneficially applied by the respondent. The court below found from the evidence that respondent had a primary right to the use of sufficient water to irrigate 7,250 acres of land at a duty of fifty acres to the second foot from the beginning of the irrigation season to the 15th day of June of each year, and at a duty of sixty-five acres to the second foot from the 15th day of June to the close of the irrigation season of each year; or, in terms of second feet only, as determined by acreage and duty, to a flow of 145 second feet of water from the 1st of January of each year to the 15th of June following, and to a flow of 111 35/65 second feet of water from the 15th of June to the end of the irrigation season. Such rights were declared prior to the rights of defendants and appellant. The rights of the defendants other than the appellant were then determined by the court in certain amounts and order, as a class of secondary rights to certain second foot quantities after the satisfaction of the respondent's rights; and, finally, the court found that the appellant, after the satisfaction of the primary rights of the respondent and the secondary rights of the defendants other than the appellant, was entitled to a tertiary right to the use of all of the remaining waters of the streams in question. These findings and awards, so far as amounts and priorities are concerned, are in no way disputed. The evidence also shows that at least from time to time, if not during every season (the possible distinction here suggested is not material to the question presented on this appeal), the amount of water flowing in the Sanpitch river and its tributaries, including the amount that can be stored in the reservoir, totals in excess of the respondent's award of primary rights as above set forth, and in excess of the amount of water that respondent has at any time during the acquisition of its rights applied to a beneficial use upon the land. Such a conclusion is not only justified by the evidence, but, as will be seen, is the raison d'etre of the position taken by the respondent in this appeal. That is to say, unless such excess existed, no dispute of the nature set out below could arise.

After an informal decision had been rendered by the trial judge, and after proposed findings of fact, conclusions of law, and decrees, differing in certain particulars, had been submitted by the plaintiff and the defendants below, the trial court rendered the following "Decision":

"On the 20th day of December, 1912, by stipulation of the attorneys for all the parties in this matter, this matter came on for hearing at Provo on the objections of the defendants to the signing of the proposed findings of fact, conclusions of law, and decree presented for the court's approval by the attorneys for the plaintiff. After hearing said objection and arguments thereon, the court now finds that the proposed findings of fact, conclusions of law, and decree, as submitted by the attorneys for the plaintiff, should be amended in the following particulars:

"(1) There should be a commissioner appointed by this court on or before the 15th day of February, annually.

"(2) That whenever in the opinion or judgment of the said commissioner the annual flow of the waters of Sanpitch river and the tributaries, together with the water stored in the reservoir of the plaintiff, will be more than sufficient to supply the claims of the plaintiff, together with other rights that are not disputed in this case, the excess may be measured out by the plaintiff, under the direction of said commissioner, to the defendants on the defendants paying or guaranteeing to the plaintiff such price as the parties hereto may agree upon; or, if agreement by them cannot be reached, then to be fixed by the commissioner.

"With these modifications, the said proposed findings of fact, conclusions of law, and decree, as prepared by the plaintiff's attorney, will become final in this case."

So far as amounts and priorities are concerned the findings, conclusions, and decree of the plaintiff, referred to in the decision just quoted, reflect the figures set forth above in this opinion.

A question of jurisdiction, preliminary to the main contention in the case, though raised only in argument, rather than properly, by a motion to dismiss the appeal, will be considered and disposed of first. As pointed out above, certain parties defendant to the action below are not parties to this appeal. Respondent contends that, since they were not made parties to the appeal, the court is without power to consider the appeal. The contention is not meritorious. In actions to adjudicate the rights of appropriators from a stream all appropriators are proper parties; they may be joined, and the court may in one judgment settle the relative priorities and rights of all the parties to such action. Section 1288x40, Compiled Laws of Utah 1907. But it is not necessary to join every appropriator in order to render effective a judgment respecting the rights of actual parties. Frost v. Idaho Irrigation Company, 19 Idaho 372, 114 P. 38, at 41. Moreover, as appears from the statement above, the interests of the various defendants were separate, not joint, and the court below made several, not joint, awards of water rights to the parties. No union of interest between the parties was alleged or found. Under these circumstances it is settled that any party may, independently, appeal. Orleans-Kenner Electric Ry. Co. v. Dunbar, 218 F. 344, 134 C. C. A. 152; Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340; Gilfillan v. McKee, 159 U.S. 303, 16 S.Ct. 6, 40 L.Ed. 161.

The sole question raised by the appeal, save the point just disposed of, is as to the disposition between respondent and appellant of any excess that may exist in respondent's reservoir above the rights of the respondent as above set forth. The question is raised by dispute as to the meaning of the paragraph marked "2" of the "decision" just quoted. Stated in the terms of interpretation placed upon that paragraph by respondent and appellant, respectively, the point raised is as follows: The appellant contends that the paragraphs referred to must be interpreted to mean that whenever it can be estimated by the commissioner to be appointed by the court that from the amount stored in the reservoir, plus the amount flowing in the stream, the respondent has or will have sufficient water to satisfy the awards above set out,...