Holman v. Pleasant Grove City

• Decision Date: 01 April 1892
• Citation: 30 P. 72,8 Utah 78
• Court: Utah Supreme Court
• Parties: ARTEMAS HOLMAN, RESPONDENT, v. PLEASANT GROVE CITY, APPELLANT

30 P. 72

8 Utah 78

ARTEMAS HOLMAN, RESPONDENT, v. PLEASANT GROVE CITY, APPELLANT

Supreme Court of Utah

April 1, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The pleadings in this case were as follows:

The complaint alleged that plaintiff's father appropriated from American Fork river in 1851 enough water to irrigate fifty acres of land, and in 1869 appropriated water for ten acres additional. In 1874 plaintiff succeeded his father in the ownership of said lands and water; that from 1874 to 1883, plaintiff used said water without hindrance on said sixty acres of land, at which time he received his water from defendant's watermaster so as not to conflict with other persons having equal rights; that in 1888 and 1889 the watermaster of defendant deprived plaintiff of the use of said water and distributed it to other persons having no right to it.

The answer denied all the allegations of the complaint and alleged that plaintiff's father, prior to 1886, acquired water sufficient to irrigate fifty acres of land, which he used upon lands in the south and west of Pleasant Grove City but used none of it on the lands now owned by plaintiff; that he disposed of said water rights to others than the plaintiff; that plaintiff has a right to surplus water from said river for irrigating fifty acres, but no other right therein; that in times of scarcity of water the defendant through its watermaster, has restricted plaintiff and others similarly situated, in the use of said water, until the rights of prior appropriators were satisfied. In 1888 and '89 the water was scarce and there was only sufficient to irrigate lands of the prior appropriators; that during said years the prior appropriators yielded some portion of their rights to holders of secondary rights, such as plaintiff and others.

The material parts of the findings and decree are as follows:

2. That in 1869 plaintiff and plaintiff's father for plaintiff's use appropriated sufficient water of American Fork river to irrigate sixty acres of land and conveyed the same to plaintiff's land through the Pleasant Grove ditch.

3. That plaintiff used said water every year without interference until 1888.

4. That until 1888 he had sufficient water and raised good crops on said sixty acres of land.

5. That in 1888 and 1889 defendant prevented plaintiff from using said water as before stated, claiming that he had no right to any except surplus water during seasons of high water.

* * * *

7. That defendant is not the owner of the water nor of the ditch, but claims only to distribute the water.

8. That plaintiff's lands are about two and one-half miles from the platted portion of Pleasant Grove City, and not within the municipal control of Pleasant Grove City.

The same day the court filed its decree by which it adjudged plaintiff entitled to use sufficient water of American Fork river to irrigate sixty acres of land during all seasons. That in cases of scarcity of water, while defendant shall control the distribution of said water, defendant shall distribute to plaintiff water sufficient for his said sixty acres of land, subject to diminution only pro rata with other prior appropriators.

That defendant be enjoined from interfering or depriving plaintiff from the use of any of said water to which he is entitled by the decree aforesaid.

One of the grounds assigned upon the motion for new trial and one of the errors assigned upon appeal was, that the decree was indefinite and uncertain.

Affirmed.

Mr. George Sutherland and Messrs. King and Houtz, for the appellant.

Mr. J. W. N. Whitecotton, for the respondent.

ZANE, C. J. ANDERSON, J., and MINER, J., concurred.

OPINION

ZANE, C. J.:

The plaintiff alleged in his complaint that, in 1851, John G. Holman, the father of the plaintiff, appropriated from American Fork river sufficient water to irrigate fifty acres of land, and in 1869 enough more to irrigate ten acres; that in 1874 plaintiff acquired the land and the water right in question from his father; and that in 1888 and 1889 the defendant's watermaster denied him the use of it. The defendant, in its answer, denied the appropriation of the water by John G. Holman, and the acquisition of it by the plaintiff. At the conclusion of plaintiff's evidence the defendant moved the court to nonsuit the plaintiff on the ground of a variance between the allegations and proofs. The court overruled the motion, and the defendant excepted, and he now assigns that ruling as error.

As to when the water was first used to irrigate plaintiff's land, and whether at first by him or his father, or by both the evidence is conflicting. The court found that in 1869 the plaintiff and his father, for the use of the former, first made the appropriation; and from the evidence this appears to be the most reasonable conclusion. The irrigation of plaintiff's land from the waters of the American Fork river was the substance of the allegation, and the date of the first appropriation, as alleged, was not descriptive of the plaintiff's right. An averment that a written instrument was made on a certain day does not make the date descriptive of the instrument, but an allegation that the...