Johnson v. Brinkerhoff

• Decision Date: 11 May 1936
• Docket Number: 5640
• Citation: 89 Utah 530,57 P.2d 1132
• Court: Utah Supreme Court
• Parties: JOHNSON et ux. v. BRINKERHOFF et al

57 P.2d 1132

89 Utah 530

JOHNSON et ux. v. BRINKERHOFF et al

No. 5640

Supreme Court of Utah

May 11, 1936

Appeal from District Court, Fifth District, Millard County; Dilworth Woolley, Judge.

Action by Francis W. Johnson and wife against David A. Brinkerhoff and others, wherein John Hansen and wife filed a cross-complaint. Decree and judgment in favor of plaintiffs and cross-complainants, and named defendant appeals.

REVERSED AND REMANDED.

D. N Straup and Willard Hanson, both of Salt Lake City, and E Vance Wilson, of Fillmore, for appellant.

Skeen &amp Skeen, of Salt Lake City, for respondents Johnson.

W. B. Higgins, of Fillmore, for respondents Hansen.

Sam Cline, of Milford, for respondent State Bank of Millard County.

FOLLAND Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, and MOFFAT, JJ., WOLFE, Justice, concurring.

OPINION

FOLLAND, Justice.

This cause arises because of disputed claims to the use of underground waters flowing from three artesian wells drilled on the land of the defendant David A. Brinkerhoff. The total flow from the wells is 1.1 cubic feet per second, or 411.75 acre feet during the irrigation season of 183 days. Plaintiffs claim 6/17 of the water, over and above 140 acre feet per season, conceded to defendant. The second amended complaint is for damages for deprivation of use of the water, and to have title quieted in plaintiffs for the amount of water claimed. Cross-complainants John Hansen and wife make claim to the same amount of water, ask for damages, and a decree quieting title. From a decree and judgment in favor of plaintiffs and cross-complainants, for damages, for 6/17 of the well water over and above 140 acre feet, and limiting defendant to 140 acre feet per season, the defendant appeals. The errors assigned and argued are: (a) Refusal to strike the second amended complaint of plaintiffs, alleged to be the substitution of a new and different cause of action; (b) admitting in evidence and considering certain deeds and mortgage; (c) insufficiency of the evidence to support the finding as to damages; and (d) permitting plaintiff to maintain the cause without first submitting the controversy to arbitration as provided by contract.

Johnson, Hansen, and Brinkerhoff each own and operate farms in Millard county, located in the same general vicinity. The land of each farm is arid and the parties depend on well water for irrigation to produce crops. These parties, and others, entered into a written contract respecting the water prior to the time either of them took title to the lands they now occupy, unless it be the defendant Brinkerhoff whose deed is dated the same day. When defendant's deed was executed with reference to the time of making the contract and when delivered is not shown. The State Bank of Millard County was agent for the lands conveyed, and its cashier, Parker Robison, was the active agent in arranging the sale. The written documents involved, so far as affecting water rights, are quoted in full as follows:

Contract of March 3, 1928:

"This agreement made and entered into this 3rd day of March, A. D. 1928 by and between David A. Brinkerhoff and A. F. Robison as parties of the first part and James Mitchell of Fillmore, Utah, John Hansen of McCornick, Utah, F. W. Johnson, McCornick, Utah, Roy Davies of Fillmore, Utah and Amos F. Terry of Delta, Utah, as parties of the second part.

"That the parties of the first part own 80 acres of land known as the Frank Robison Farm at Flowell, and particularly described as follows:

"The south half of the Northwest quarter of Sec. 17, Township 21, South, Range 5 West S. L. M. Utah, together with an artesian well now located on the Southeast corner of said land; now in consideration of all of the parties of the second part joining together at their own expense and drilling two more wells and also drilling 100 feet deeper on the present well, said wells to be located on the upper part of the above described land, the parties of the first part do hereby give a right to drill said wells with the understanding that the parties of the first part allow the parties of the second part absolute right to the use of all developed water over and above a sufficient amount to properly irrigate said land above described, with the further agreement that in case of shrinkage in water that the said second parties are to allow the land above mentioned to have all water if necessary up to 1 3/4 acre feet for said land; in other words, the land above described is to have a preferred right in case the water is not sufficient to irrigate all the land in said project. The parties of the first part do hereby give a right-of-way for reservoiring said water on the upper part of the land above described, said reservoir to be of sufficient size to properly reservoir the water for twelve hours at a time. The parties of the first part do also give the second parties right-of-way for ditches to convey the water to their respective farms. The parties of the first part do also give the parties of the second part the right to drill as many wells as are necessary to properly irrigate all of their said lands and not to exceed 200 acres in addition to the land above described. Each party of the second part further agrees to stand his part of the expense of ditching and dyking and building of reservoirs for the proper irrigation of their lands. The second parties agree to stand all the cost of drilling as a consideration for the right to drill. The parties of the first part also give the parties of the second part the right to pump said wells should they cease to flow sufficient to properly irrigate all of said lands with the understanding that all parties of the second part hereto stand the cost of pumping equally. If all wells in the flat become pump wells, then after five years first party stands his part of pumping.

"All parties hereto do hereby agree to allow Parker Robison as agent, to arrange for pipe and drilling and they agree that all the costs of the same is to be added to the mortgage and note of the parties of the second part, prorated according to the number of acres each member of the second part has under said project.

"In case any disagreement ever arises over this contract, all parties hereto agree that the State Bank of Millard County shall have the right to arbitrate said differences and all parties hereto agreed to be bound by the decision made by the officers of said bank."

Warranty deed from A. Wayne Robison and wife to Brinkerhoff, dated March 3, 1928, recorded February 20, 1930:

"A. Wayne Robison and Fern Robison, his wife, Grantors of Fillmore City, Millard County, State of Utah, hereby convey and warrant to David A. Brinkerhoff of McCornick, Millard County, State of Utah, for the sum of Ten Dollars and other valuable considerations the following described real estate in Millard County, State of Utah, to-wit:

"The South half of the Northwest Quarter of Section (17) Seventeen in Township (21) Twenty-one South, Range (5) Five West, Salt Lake Meridian, containing 80 acres, together with all improvements thereon, subject, however, to the right of John Hansen, F. Wells Johnson and Roy Davies to drill wells on the east end of said land, as many wells as they desire, and subject to a reservoir on the east end of said land sufficiently large to hold all the water from said well for 12 hours and subject to their right to pump said wells hereafter if they desire and subject to suitable right of way for ditch leading from said reservoir along the north boundary of said land. However, the Grantee herein is to be protected by the said Hansen, Johnson and Davies in a preferred water right from said wells amounting to 140 acre feet per irrigation season for each and every year hereafter. If the water should later fail to equal 140 acre feet per irrigation season then the Grantee herein named is to have all of the water up to that amount and if after five years all of the wells become pump wells the said Grantee herein named is to stand his pro-rata cost of the pumping according to the number of acres each one has under said wells. If the water shrinks so that the said Johnson, Hansen, and Davies are not interested in pumping then they are in no way obligated to do so as long as they do not hinder the said Brinkerhoff from so doing and having what water he develops. The said Brinkerhoff is not hindered by this deed from drilling independent wells on said property and having all the waters therefrom."

Quitclaim deed from A. Wayne Robison and wife to Francis Wells Johnson for water only dated March 3, 1928, which was delivered about July, 1930, and recorded August 8, 1930:

"A Wayne Robison and Fern Robison, his wife, Grantors, of Fillmore City, Millard County, State of Utah, hereby Quit Claim to Francis Wells Johnson of McCornick, Millard County, State of Utah, Grantee for the sum of $ 1.00 and other valuable considerations, the following described property in Millard County, State of Utah:

"An undivided (6/17) six seventeenths interest in and to all water to hereafter be developed, by him, subject to a first right which is reserved in the Grantors of 140 acre feet of water per irrigation season each and every year hereafter the said Grantee being required as a part consideration to drill wells on the east end of the South half of the northwest quarter of section seventeen in township twenty one south range 5 west S. L. M. Utah and a right of way is hereby given to drill said wells and a suitable reservoir right is hereby given on the east end of said property together with ditch rights from the said reservoir along the north side of the property above mentioned to the land of the Grantee, which is situated to the northwest of the land above...