Lehi Irrigation Co. v. Moyle

• Decision Date: 13 February 1886
• Citation: 4 Utah 327,9 P. 867
• Court: Utah Supreme Court
• Parties: LEHI IRRIGATION COMPANY, APPELLANT, v. STEPHEN MOYLE, ET AL., RESPONDENTS

9 P. 867

4 Utah 327

LEHI IRRIGATION COMPANY, APPELLANT, v. STEPHEN MOYLE, ET AL., RESPONDENTS

Supreme Court of Utah

February 13, 1886

APPEAL from a judgment of the district court, of the first judicial district, and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Sheeks & Rawlins, and Mr. S. R. Thurman, for the appellant.

A ditch constructed and used as this was, is private property belonging to those who constructed it and their successors in interest: it is not public property: U.S. Rev. Stats., sec 2339; Atchison v. Peterson, 20 Wall., 507; Basey v. Gallagher, 20 Wall., 670;Jennison v. Kirk, 98 U.S. 453; Broder v. Water Co., 101 U.S. 274; Trippe v. Overacher, 1 West Coast Rep., 352.

The ditch, with the right to its use, is not a mere casement. It is land, and must be transferred by deed: 2 West Coast Rep., 2-3; Reed v. Spicer, 27 Cal. 57; Smith v. O'Hara, 43 Cal. 371; 22 Am. Rep., 533.

There was nothing in the conduct, action or lack of action on the part of plaintiff, or its predecessors in interest, to estop it from now asserting its right. There was no contract, fraud or misrepresentation. Neither was there any such acquiescence as should estop plaintiff: Pomeroy's Eq. sec's. 805, 806, 807, 808, 809, 810, 811, 812, 818 and 821; Bigelow on Estoppel, 484, 490; Woodruff v. North B. G. M., 1 West Coast Rep., 183; Anaheim Water Co. v. Semi Tropic Water Co., 64 Cal. 185; Trenton Banking Co. v. Duncan, 86 N.Y. 221-230.

Mr. Arthur Brown and Mr. A. G. Sutherland, for the respondents.

The right to convey water over another's land is a mere easement: 53 Cal. 140; Yale, 202-209; 101 U.S. 276.

Congress has excepted from all patents the right of a water way. This was but a mere declaration on the part of Congress of the prior customs existing upon the Pacific Coast, and it was the crystallization into the statute law of that which had before been the common law of this part of the country: 101 U.S. 276; Bassey v. Gallagher, 20 Wallace; Sabron Case, 10 Nev. 217.

What has been the custom and local law prior to that act? What rights did each of the parties have towards each other? Look at this from its standpoint without the statute. We must remember the history of this country. Land was nothing--water was everything. He who first took water was therefore supposed and held by adjudication to have the right to it in whatever form or manner he appropriated it.

But his appropriation was only to the extent and for the time to which he used it: 30 Cal. 39; 20 Wall., 515; 24 Cal. 302; 13 Cal. 30; 3 Mont. 215; 14 Nev. 170.

The plaintiff is estopped from asserting any right against the occupants of land watered by the Alpine ditch, for the reason that it and its grantors has permitted them to go on and do work on the faith of an understanding that they would receive water for that work, thus constituting an equitable estoppel: Dickerson v. Colgrove, 10 Otto; 3 Mont. 229.

BOREMAN, J. ZANE, C. J., and POWERS, J., concurred.

OPINION

BOREMAN, J.:

This is an action brought by the appellant, the Lehi Irrigation Company, to have the respondents, Stephen Moyle, et al., enjoined and restrained from using, tapping, or otherwise interfering with a certain irrigation-ditch, so as to prevent the water, and all the water, from flowing therein. The trial was by the court, and judgment was given for the respondents. A motion for a new trial having been made and overruled, the appellant brought the case to this court, by appeal from the judgment and from the order overruling the motion for a new trial. The appellant claims that the motion for a new trial, made by it in the lower court, should have been sustained, and the main reason urged therefore is that the findings of fact are not sustained by the evidence.

The issues in the lower court were chiefly regarding the right of the respondents to use the Lehi irrigation-ditch for transporting water from the American Fork canyon to their lands. Motions for new trials are always addressed to the sound discretion of the court, and whether granted or denied, the discretion of the trial court will be presumed to have been properly exercised, and will be so held unless the contrary be made clearly to appear. It is a general rule that the findings of a trial court should not be disturbed, unless the preponderance of evidence against them be apparent, and so marked that the appellate court can plainly see that the findings are against the evidence. If there is a substantial conflict of evidence, we have no right to reverse the decision: Harrington v. Chambers, 3 Utah 94, 1 P. 362; Newton v. Brown, 2 Id. 126; Firman v. Baleman, Id., 248; Walker v. Popper, Id., 281; Dewey v. Snider, Id., 344; Lubeck v. Bullock, 24 Cal. 338; Rice v. Cunningham, 29 Id., 492;Wilkinson v. Parrott, 32 Id., 102; McNeil v. Shirley, 33 Id., 202.

The appellant claims exclusive ownership of the ditch in question, and exclusive use and right to use the same. The respondents deny the claims of appellant, and assert in themselves a right to the use of the water and of the ditch so far as they have appropriated the same in excess of the amount, or outside of the time, used by appellant or its grantors when respondents settled on their lands.

The court below made ten findings of fact. To six of these the appellant files his exceptions, namely, to numbers 1, 2, 4, 5, 9, and 10. The exceptions are generaly not made to the whole of any one of theses findings, but to some specific part of parts thereof.

The objectionable part of the first finding is the declaration "that the said ditch was built for the purpose of irrigating the Lehi big field, and for the common accommodation of the citizens who had settled, or should thereafter settle, at Lehi, or in the vicinity, or along the path or course of said ditch." While perhaps no witness testified directly that the ditch was built with such avowed object, yet facts were proven from which the court could justly draw that conclusion. Evidence is not always the testimony of a witness, but is sometimes the effect of testimony. A witness may assert or deny an alleged fact, and yet detail circumstances which will show the very contrary.

The ditch in question, as first made and as afterwards enlarged and changed, was for certain purposes. What these are is to be learned from the declarations, acts, and general course and conduct of the builders.

The primary object of the ditch, no doubt, was to carry water to the lands of the thirty-one or thirty-two original settlers situate in the Lehi big field, but it as plainly appears from the evidence that this purpose was afterwards modified, expanded, and added to. The ditch was allowed to supply water to lands in the big field other than those owned by the thirty-one or thirty-two first settlers, but belonging to parties settling there subsequently to them; and it was made also to furnish water to lands and settlers outside of the big field and outside of Lehi settlement. Along the Matthews ditch alone, which receives its waters from the Lehi ditch, there are lands thus watered, which belong to some twenty-five persons who are, in the same manner as settlers inside the Lehi settlement, allowed the benefits and use of the ditch. Those parties are now members of the corporation and their interests are represented by the appellant.

The first witness for appellant testified that the business of the corporation has been to distribute the waters "to the inhabitants and those that we acknowledge to have rights." This indicates that appellant does not confine the use of the ditch to the primary object.

There is evidence going to show that the new settlers inside the Lehi settlement, upon their arrival, were allowed to have the use of the water and an interest in the ditch without question. They simply united with the other settlers in working upon and enlarging the ditch. Such parties are now represented by the appellant--they are included in the company. No deeds seem to have passed from the original thirty-one or thirty-two settlers to those later settlers. They were admitted by tacit consent; no deeds were necessary. These later settlers helped to make the ditch as it is now found.

There is evidence to show that in all things regarding the ditch and the water, the Lehi people were accustomed to act together as a community and not as separate individuals. That they generally acted or were represented by their bishop or by public meetings, by committees, water boards, watermasters, etc. They sent a committee to arrange with the Alpine people for a right of way for a new Alpine ditch to constitute a part of the main ditch; that said arrangement was made and the action of the committee was approved in public meeting by the Lehi people; that Bishop Evans, as spokesman and representative of the Lehi people, gave express permission to Stephen Moyle and John Poole to use the water from the ditch at particular times; that John Poole was admitted into the company, although he afterwards withdrew; that the settlers on the bench generally, including the respondents, were invited to join the company. At first, the settlement was small, and the ditch was accordingly small. Subsequently the settlement grew, the numbers increased, and the amount of land subject to irrigation increased, and, of course, the flow of water was increased to meet the increasing demands. In 1877 the number of settlers had increased to over two hundred, and the appellant is now representing over two hundred, who reside, inside and outside, but mostly inside, the Lehi settlement.

The respondents all live outside, on lands lying between Lehi and the mouth of the American Fork canyon, and receive water upon their lands by side-ditches from...