Manning v. Fife
| Citation | 17 Utah 232,54 P. 111 |
| Decision Date | 22 July 1898 |
| Docket Number | 934 |
| Court | Utah Supreme Court |
| Parties | JOHN MANNING ET AL., APPELLANTS, v. JOSEPH FIFE, WILLIAM PARKER ET AL., RESPONDENTS |
Appeal from district court, Weber county; H. II. Rolapp, Judge.
Suit by John Manning and another against Joseph Fife and another for an injunction. From a decree dismissing the bill, plaintiffs appeal.
Reversed.
D Evans, L. R. Rogers and E. M. Allison, Jr., for appellants
Kimball & Kimball, for respondents.
This is an appeal from a decree dismissing appellants' bill for an injunction, and awarding costs against them. The questions for decision arise upon the findings. The proof upon which they were made is not before us. Each of the respective parties to this suit irrigated land from some of the canals mentioned in the findings, and is represented by the irrigation or canal company that owns it. It appears from the findings that the defendants, The Riverdale Bench Canal Company, appropriated, in 1866, 18.67 second-feet of water (the second-foot being the standard unit of measurement for flowing water in this state [Sess. Laws 1897 p. 225], and has been entitled to that much ever since; that the Hooper Irrigation Company, lower down the river, appropriated, in 1867, 115.01 second-feet; that the Wilson Irrigation Company, at a point still further down, in 1870, appropriated 90 second-feet; and the Davis County & Weber County Canal Company, at a point four miles above the point of diversion of the Riverdale Bench Canal, also made an appropriation later than either of the others. It further appears that the irrigating season of these respective canals was from April 15 to October 15 of each year; that, in pursuance of an agreement between the Riverdale Bench Canal Company and the Davis & Weber Canal Company the former closed its head gate at the Weber river five days, commencing on August 1, 1897, and the latter company, on the same day, turned into its canal from the river 18.67 second feet of water for the same length of time; that all the land that had and could be irrigated from the Riverdale Bench Canal (being 500 acres, much of it wet) was sufficiently irrigated when it shut the water out of its canal, and that the Riverdale Bench Canal Company, by giving the water to the last appropriator, did not to any extent injure the crops growing on the land irrigated by it; that during the same time the crops and trees growing on the lands irrigated from the plaintiffs' canals were greatly injured and damaged, because the water left in the river was less than they had appropriated, and not sufficient to irrigate the lands under their canals during the same five days. The Riverdale Bench Canal Company claims the right to close its gate at the river, and allow the Davis & Weber County Canal Company to divert from the river into its canal 18.67 second-feet of water, though there may not be enough left to furnish the plaintiffs the amount of water appropriated by them, and to sufficiently irrigate the lands under their canals; while the plaintiffs deny that claim, and insist that they are entitled to so much of the water appropriated by the Riverdale Bench Canal Company as it does not actually use, and is not necessary to irrigate the lands under its canal, and for the domestic use of their occupants. The appropriation was from April 15 to October 15 of each year, and we must assume that the amount of water necessary to irrigate the 500 acres of land under its canals varied during that time. The court in effect found that no part of 18.67 second-feet of water was necessary to irrigate the lands susceptible of being watered from the Riverdale Bench Canal, or for their occupants during the five days it was used by the Davis & Weber County Canal. The difference between the quantity of water the Riverdale Bench Canal Company appropriated, and the quantity actually used and necessary for the purposes of its appropriation, the plaintiffs insist, was surplus water, and was theirs to the full quantity of their appropriation if they or either of them needed it for the purposes of their appropriation; that the first appropriator had no right to deprive them of it under such circumstances, by wasting it, or giving it away, or turning it to a company or other person whose appropriation was subsequent to theirs, and for whom it was not appropriated by the first appropriator.
The question is presented: Does an appropriator of water from a natural source of supply, when there are subsequent appropriators, who need the water, and actually have less than the quantity they appropriated, have the right to divert it to uses other...
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