Herriman Irrigation Co. v. Butterfield Mining and Milling Co.

• Decision Date: 19 May 1899
• Citation: 19 Utah 453,57 P. 537
• Court: Utah Supreme Court
• Parties: THE HERRIMAN IRRIGATION COMPANY, A CORPORATION, APPELLANT, v. THE BUTTERFIELD MINING AND MILLING CO., A CORPORATION, AND GEORGE W. KEEL, ET AL., RESPONDENTS

57 P. 537

19 Utah 453

THE HERRIMAN IRRIGATION COMPANY, A CORPORATION, APPELLANT, v. THE BUTTERFIELD MINING AND MILLING CO., A CORPORATION, AND GEORGE W. KEEL, ET AL., RESPONDENTS

Supreme Court of Utah

May 19, 1899

Appeal from the Third District Court Salt Lake County, Hon. Ogden Hiles, Judge.

Action to enjoin defendants from continuing to divert water which plaintiff claims the exclusive right to use for irrigation and domestic purposes.

From a judgment and decree dismissing plaintiff's complaint and entering judgment for defendants on their cross-complaint plaintiff appeals.

Reversed and remanded.

Messrs King, Burton & King, and Messrs. Ferguson & Cannon, for appellants.

Messrs Bennett, Harkness, Howat, Bradley & Richards, for respondents.

BASKIN, J. BARTCH, C. J., and McCARTY, Dist. J., concur.

OPINION

BASKIN, J.

This is an action to enjoin the defendants from continuing to divert water which the plaintiff claims the exclusive right to use for irrigating and domestic purposes. The complaint alleges "that in the year 1850, the grantors and predecessors in interest of plaintiff located, settled upon and began the cultivation of a large tract of land in the southwest part of Salt Lake County, Utah; that said land is sterile and arid and is valuable only for agricultural purposes through irrigation; that continuously from said date until the present time the plaintiff's predecessors and stockholders have cultivated said land and have laid out a town thereon, made homes and improvements, and have been and are still dependent upon said lands for their sustenance and support.

"That the only sources of supply from which water can be obtained for the irrigation of said lands are what are known as Rose Creek and Butterfield Creek, which rise from melting snow in the mountains surrounding Herriman, in said county, which, in the year 1850, plaintiff's predecessors entered upon and appropriated and used the waters therein for irrigation and domestic purposes upon the land. That said waters had not been appropriated prior to that time, and that thereafter plaintiff's predecessors and stockholders have appropriated and used during each year all of the waters of said streams for irrigating said lands and for domestic purposes, except when said waters were interfered with by defendants.

"That Butterfield Creek was and is the particular source of supply, furnishing more than double the amount of water supplied by Rose Creek.

"That all of the waters of said creeks are absolutely indispensable for irrigating said lands and for domestic and culinary purposes and that without all of said waters said lands will become valueless, and the homes and improvements thereon belonging to plaintiff's stockholders will become worthless and plaintiff and its stockholders will suffer great and irreparable loss and injury.

"That during the entire period from the year 1850 until the year 1894, plaintiff's grantors and predecessors in interest and plaintiff's stockholders had the free, full, and unrestricted use of all the waters of said streams, and that no person or persons made any claim thereto."

The complaint further alleges that the defendants have willfully diverted a portion of the water so as aforesaid owned and appropriated from the natural channel, and deprived plaintiff's stockholders of its use and threaten to continue to divert the same; and if permitted to do so the lands of plaintiff's stockholders will be made desolate, and their property be destroyed to their great and irreparable damage.

Defendants deny that they have wrongfully diverted the water, and deny all of the other allegations of the complaint, and by way of cross-complaint allege that "in the year 1892, and since then the defendant Butterfield Mining Company owned a large number of mining claims near the point where it is alleged the waters of Butterfield Creek were diverted and has spent over $ 200,000 in working and developing the same; that in 1892 it ran two tunnels, one called Queen Tunnel, commencing on the mountain about one thousand feet above Butterfield Creek and continuing northwesterly into the mountain a distance of over 3,400 feet, and the other, called Butterfield Tunnel, commencing near Butterfield Creek about two and a quarter miles above and southwesterly from the point where, in the complaint it is alleged the waters of the creek are diverted; that in the progress of the work on those tunnels seepage water from the rocks and ground collected in the tunnels and flowed therefrom; that on the 24th day of February, 1893, the defendant company posted at the mouth of the tunnels and filed in the office of the Recorder of the West Mountain Mining District, notices of the appropriation of said waters for mining, manufacturing, agricultural and other purposes, and that temporarily the water would run into Butterfield Creek and afterward be diverted by said defendant company to the uses aforesaid.

"That in and since the year 1892, the defendants, other than the Butterfield Mining Company, took up, fenced, and have since occupied about 2,800 acres of land on the northerly side of said Butterfield Creek, and from two to four miles southerly of the power house, and acquired from the defendant company the waters flowing from said tunnel to irrigate and reclaim the lands for cultivation, and for use thereon for farming and other purposes and constructed a headgate in the channel of Butterfield Creek about two and a quarter miles above the power house, made a ditch, and conducted by means thereof to their said lands the waters flowing from said channels.

"That at no time have defendants taken from said Butterfield Creek at said headgate as much water as comes thereto from said tunnels, or decreased or diverted any of the natural flow of the creek at or below that point; but on the contrary, have taken less water from said creek than the amount the natural flow was increased by the water coming in from said tunnels.

"That the plaintiff unlawfully and wrongfully claims at said headgate all the waters flowing from the tunnels of the defendant company, and claims the right and threatens to divert said waters from defendants' ditch, and defendants believe that unless restrained the plaintiff will so divert said waters to the irreparable damage of said defendants.

"Defendants pray that the amount of water to which each of the parties is entitled at said headgate may be ascertained; that the plaintiff be enjoined pending the action, and by judgment perpetually enjoined from diverting or in anywise interfering with the waters flowing from the tunnels from defendants' ditch at said headgate, and such other relief as may be equitable and proper."

The answer to the cross-complaint admits that said tunnels were run, but denies the allegation of the defendants, that they have taken less water from Butterfield Creek than the amount the natural flow was increased by the water coming in from said tunnels. It is also alleged in said answer to the cross-complaint that said "tunnels driven by defendants intercepted waters which had been the natural sources of supply of Butterfield Creek; that by the construction of Butterfield Tunnel well defined channels in which water was flowing to springs tributary to said Butterfield Creek were intercepted, and the waters therein wrongfully and unlawfully diverted and prevented from continuing in said channel where they had been flowing for a great many years, thereby cutting off a portion of the water supply of said plaintiff, and depriving it and its stockholders of the water to which they were entitled. That the Queen Tunnel intercepted waters which had from beyond the memory of man flowed uninterruptedly and continuously into said Butterfield Creek, and which since the year 1850 had been used by plaintiff's grantors and predecessors in interest upon their lands as set forth in plaintiff's complaint."

The only findings of the trial court necessary to be considered, in a decision of the case, are as follows:

"Second. In or about the year 1852, various settlers upon lands in or near what is known as the village or settlement of Herriman in Salt Lake County, Utah being thirty or thirty-five in number and the heads of families, appropriated for beneficial use in irrigating their lands all the waters flowing in Butterfield Creek at the point of diversion, which is about two miles above the village or settlement of Herriman, and the lands on which the water was used, and they and their successors in occupation and interest have ever since used said waters for said land. That the persons entitled to the use of said waters organized the plaintiff corporation for the purpose of controlling the use and distribution of said waters, according to the respective rights of the corporators and shareholders, and conveyed to it the said waters for such purposes, and the plaintiff corporation is the owner of, and represents all parties beneficially interested in the appropriation of said waters and the use thereof.

"Sixth. That in each of said tunnels, as the work progressed, seepage waters from the adjoining rocks collected, and neither of the tunnels cut or diverted the waters of any underground channel or water course, or diverted any waters except those percolating in and from its mining ground by natural seepage. That considerable streams of water were thus formed in and run from said tunnels, a preponderance of the testimony shows, and I find that since the Queen and Butterfield tunnels were made, some springs on the northerly side of Butterfield Creek and near the bed of the creek and its branches, and which flowed into the creek and its branches, have dried, and some have diminished in flow. The most important of...