Horne v. Utah Oil Refining Co.

• Decision Date: 08 October 1921
• Docket Number: 3645,3684
• Citation: 202 P. 815,59 Utah 279
• Court: Utah Supreme Court
• Parties: HORNE et al. v. UTAH OIL REFINING CO

202 P. 815

59 Utah 279

HORNE et al. v. UTAH OIL REFINING CO

Nos. 3645, 3684

Supreme Court of Utah

October 8, 1921

Rehearing Denied December 28, 1921.

Appeal from District Court, Third District, Salt Lake County; W. H Bramel, Judge.

Action by George H. Horne and others against the Utah Oil Refining Company. From judgment for plaintiffs, defendant appeals.

MODIFIED AND AFFIRMED.

Ball Musser, & Robertson, of Salt Lake City (Ogden Hiles, of Salt Lake City, of counsel), for appellant.

H. L. Mulliner, of Salt Lake City, for respondents.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an action in equity to enjoin defendant from operating certain wells situated in an alleged artesian district in the northwest part of Salt Lake City, Utah.

In order to unravel certain complications which have developed during the progress of the cause, it is necessary to briefly summarize in chronological order the various moves made by the parties litigant and orders of the court in respect thereto since the commencement of the action.

The complaint was filed in the district court of Salt Lake county July 21, 1920, and on the next day plaintiffs moved the court for a temporary injunction. On the 29th day of the same month defendant filed its demurrer to the complaint, and on the 3d day of August, next following, filed its answer. On the date last mentioned the court commenced hearing the evidence on the motion for an injunction, which proceeding occupied the attention of the court for several days before the cause was submitted. On August 14th the court entered an order allowing plaintiffs' motion for an injunction. On the 18th day of the same month defendant filed its amended answer and a document designated a counterclaim to the complaint, the demurrer thereto not having been formally disposed of. On the 8th day of September next following the court filed its findings of fact and conclusions of law on the motion for injunction, and directed decree to be entered thereon. Entry of the judgment was duly made September 13, 1920. On November 20th thereafter, defendant moved the court to set aside and annual its findings, conclusions, and decree, and at the same time called for a decision of its demurrer filed July 29th, as heretofore stated. On December 22, 1920, the court entered its judgment denying defendant's motion to set aside the judgment entered in September, and at the same time overruled defendant's demurrer and denied its right to be heard on the alleged counterclaim, on the ground that it was not filed in time. On March 9, 1921, defendant appealed from the judgment entered in September, which appeal was taken upon the judgment roll alone. Assignments of error on said appeal were filed in time. Thereafter defendant filed its bill of exceptions, and on June 2, 1921, served and filed its second notice of appeal. On August 11, 1921, plaintiff filed and served notice to dismiss both appeals, on the alleged ground that the attempted second appeal was ipso facto an abandonment of the first appeal, and that the second appeal was not taken in time. In response to these motions to dismiss, defendant, on August 13th next following, filed a motion to consolidate the alleged appeals, and to amend its assignments of error.

It is unnecessary to specify the particulars constituting the complications. The situation, however, was relieved of its complexity, to some extent, by stipulation.

At the hearing of the motions last referred to on August 29, 1921, it was stipulated by the parties that in the event that this court should determine that the first appeal is valid, and in force, then the record on said appeal, which was taken upon the judgment roll alone, might be amended by adding thereto the bill of exceptions and assignment of errors afterwards filed in the cause. The court is not only of the opinion that the first appeal is valid and in force, but also that the amendment of the record, by adding thereto the bill of exceptions and assignments of error as above stated, preserves the substantial rights of all the parties to the action, and puts the case in condition to be disposed of on its merits. We therefore deem it unnecessary to determine the questions of law presented on the respective motions to dismiss and consolidate the appeals.

The complaint of plaintiffs, as far as material, in substance alleges: That there is located in the northwest portion of Salt Lake City, Utah, a certain artesian district extending approximately four blocks north and south and about three blocks east and west, embracing certain city blocks specifically mentioned; that underlying said area of land is a well-defined artesian basin, located in a well-defined underground pervious stratum; that said basin is located below compact impervious strata, and is under pressure; that the district is such that when the impervious cap layer is pierced the water is forced to flow above the surface of the ground in artesian wells; that the basin is fed from the mountains and canyons adjacent to Salt Lake City, and is underground from 75 to 125 feet, sloping gradually to the north and west; that the said subterranean belt or basin is common to the lands of the plaintiffs; that the water of said basin in quality is superior to surface waters, and is extremely valuable and necessary to the use of the properties located above said basin. It is then alleged that plaintiffs and their predecessors in title for more than 40 years have been the owners of the land within said district, and that the same has been used for residence purposes, with two exceptions specifically mentioned; that said homes are surrounded by lawns, orchards, and gardens which are irrigated by artesian wells situated thereon, which also supply plaintiffs' homes with water for domestic and culinary purposes; that all of said waters have been used by plaintiffs and their predecessors in title for said purposes for a period of from 15 to 45 years; that said water is necessary in the occupation and use of said properties, and to maintain the value thereof and preserve the vegetation thereon; that said water rights belong to said land, and are appurtenant thereto; that there is no other water supply connected with or at this time available for use upon said properties; that, prior to the sinking of the wells by the defendant, afterwards alleged in the complaint, the plaintiffs' wells then in use were sufficient to utilize the said underground water supply and the whole thereof, giving to each well a sufficient pressure so that the water could be used to advantage for the purposes mentioned without lowering the supply of said water to the point where the pressure would be diminished or destroyed.

The complaint then shows that defendant, having procured an option on certain land 10 rods long by 10 rods wide in the northwest corner of said artesian district, at a lower point than the land owned by plaintiffs, on or about May 27, 1920, completed a large 6-inch artesian well on said optioned property, and has since completed six wells of similar size thereon; that plaintiffs' wells were only 2 inches in diameter. It is then alleged that the wells so driven by defendant are draining said basin faster than the same is being supplied, and, as a result, the pressure in all of plaintiffs' wells has been diminished; that several of plaintiffs' wells driven at higher points have dried up, and the pressure in several others has been reduced so that the flow of water therefrom is insufficient for the purposes to which it has been devoted, or for any practical purpose whatever; and that the pressure of all of said wells in a short time will be destroyed.

Plaintiffs further allege that defendant's wells have not been driven for the purpose, or with the intention, of using or utilizing the water on the land upon which the wells are driven, or upon any property within said artesian district, but were driven by defendant for the purpose of conveying the water away from the land upon which the wells were driven to its oil refining plant several blocks north and outside of said artesian district, there to be used for commercial and manufacturing purposes; that defendant threatens to, and, unless restrained, will, place large pumps upon said wells and commence pumping the water through said wells from said basin, and will totally deprive plaintiffs of the use of said water. Plaintiffs further allege that where plaintiffs' wells have been dried up as alleged plaintiffs have been compelled to carry water for domestic use, and that their lawns, orchards, and gardens are being destroyed for want of water; that if said wells are closed for any considerable length of time there is great danger of change in the underground formation, so that the pressure in said wells cannot be restored, and plaintiffs' water rights will thereby be wholly lost, to their great and irreparable injury, for which they have no plain, speedy, or adequate remedy at law; that such water supply cannot be restored from any other source, nor plaintiffs' property be preserved, except by closing defendant's said wells; that the bringing of separate suits for damages would result in a multiplicity of actions; that the damage to plaintiffs is continuous, and depends upon how long defendant may be permitted to deprive them of their water supply; that it is impossible to allege the exact damage which will be suffered by each of the plaintiffs; that the plaintiffs have already suffered considerable damage, and unless defendant is restrained plaintiffs' damages will exceed the sum of $ 250,000; that defendant's wells can be shut off without injury to them.

Plaintiffs pray that defendants be restrained from...