Midway Irr. Co. v. Snake Creek Mining & Tunnel Co.

• Decision Date: 28 January 1921
• Docket Number: 5570.
• Citation: 271 F. 157
• Parties: MIDWAY IRRIGATION CO. et al. v. SNAKE CREEK MINING & TUNNEL CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

271 F. 157

MIDWAY IRRIGATION CO. et al. v. SNAKE CREEK MINING & TUNNEL CO. ^[1]

No. 5570.

United States Court of Appeals, Eighth Circuit.

January 28, 1921

A. B Irvine, of Salt Lake City, Utah (Sam D. Thurman, of Salt Lake City, Utah, on the brief), for appellants.

H. R Macmillan, of Salt Lake City, Utah (Andrew Howat, John A Marshall, and B. S. Crow, all of Salt Lake City, Utah, on the brief), for appellee.

The parties will be referred to herein as they appeared in the court below, the appellants as defendants, and the appellee as the plaintiff. The plaintiff by its complaint sought to have its claim to the water flowing from its tunnel, between the portal of the tunnel and the point of diversion, less loss by seepage and evaporation, established and confirmed against the defendants; that it be decreed that the defendants have no right to take and divert from Snake creek below the point where the water, issuing from its tunnel, flows into Snake creek, and the defendants be enjoined from claiming said water or any part thereof.

The material allegations in the complaint are that the plaintiff is the owner of a quarter section of land, and in April, 1910, it commenced to drive a tunnel, the portal of which is on said land, and constructed it 14,500 feet into the mountain at great depth, and is the owner thereof and the water issuing therefrom; that about 2,684 feet from the portal of the tunnel water was encountered percolating through the rocks and soil, which is conveyed through and from the tunnel in a sluice at the bottom of the tunnel, the amount of water flowing from the tunnel in 1918 being 14.38 second feet or 6,454 gallons per minute; that from the portal of the tunnel the water flows about 2,000 feet into Snake creek, which is a tributary of Provo river, both of which are natural water courses; that water was first encountered in the tunnel in January, 1911, and has been increasing ever since, as the tunnel was lengthened; that, in permitting the water from the tunnel to flow into Snake creek, it did not intend to abandon its title to the water, and to become a part of Snake creek or Provo river, subject to appropriation by others, but claimed to own it, with the right to divert it for irrigation or other beneficial purposes; that before the beginning of the irrigation season in 1914 it sold the right to take this water to the Provo Reservoir Company for the purpose of irrigation, which requires it for the growing of crops by its stockholders; that all other waters flowing into Snake creek, Spring creek, and Provo river had been theretofore appropriated for irrigation and other useful purposes; that the defendant Irrigation Company is a corporation for the purpose of irrigation, and denies that plaintiff is the owner of the water flowing from said tunnel, and claims that it was water subject to appropriation and use by it for its stockholders, and diverts for purposes of irrigation all the water flowing from plaintiff's tunnel into the creek; that it has diverted the water below where it flows from the tunnel into the creek, and deprived the Provo Reservoir Company and its stockholders of the use of said water, which prevents them from raising crops.

The defendants filed an answer and counterclaim. In it they deny that the water is percolating water, in the sense that it is a part of the soil lying therein, but allege that said waters before they enter said tunnel are flowing waters, directly tributary to and part of a natural stream known as Snake creek, varying at times in proportion as the waters in Snake creek vary at different times. They deny that Snake creek and Provo river are public water courses, but allege that long before the plaintiff commenced the driving of the tunnel all the waters of Snake creek, Spring creek, and Provo river had become vested in private ownership of defendant and its stockholders. They deny that any of the surplus waters in said tunnel were subject to appropriation by the plaintiff, or any other person, except the defendants. They claim that the waters from said tunnel have for more than 25 years been appropriated and used by the defendants, who are now the owners thereof, and have the right to use the same for beneficial and useful purposes; no water having been added to the creek or river since the driving of the tunnel. They deny that plaintiff or its predecessors, within 25 years before the institution of their action, ever claimed or asserted that the waters from said tunnel were public waters or subject to appropriation.

In their counterclaim the defendants allege that for more than 25 years they and their predecessors in interest have been the owners of all the waters and water rights for irrigation and other beneficial purposes of the waters and water rights for irrigation of Snake creek, by appropriation and diversion; that the natural sources of said creek consist of rain, melting snow, springs, and seepages, which, before the construction of the tunnel, ordinarily supplied the greater portion of the flowing water of said creek and were the main reliance of the defendants for the supply of water for the irrigation of their land and other beneficial purposes; that said springs and seepages had their source in the bosom of the mountains, and before the construction of the tunnel found their way to the surface of the mountains through natural channels and fissures of the rocks, and found their way into said creek, and were its natural tributaries and feeders; that all the waters of said creek and water rights pertaining thereto are owned by defendants, and are necessary and not more than sufficient, when economically used, for their purposes as stated; that the plaintiff wrongfully and in violation of defendants' rights drove its tunnel, from the mouth of which a substantial quantity of water flows, sufficient to irrigate several hundred acres of land, which waters formerly found their way into the natural surface channel of Snake creek through underground channels and sources; that the tunnel is in the immediate vicinity of Snake creek, its portal being in the canyon through which the creek flows, and in the prosecution of the work undermined, cut off, and diverted the underground flowing streams, springs, and seepage constituting the permanent source of the flowing water of said creek, and thereby caused said waters to flow into the tunnel; that prior to the digging of plaintiff's tunnel the Mountain Lake Mining Company dug a deep tunnel into the mountain at a point higher up the stream and higher in elevation than plaintiff's tunnel, which tunnel of the Mountain Lake Mining Company crosses Snake creek underneath its head; that the driving of the Mountain Lake tunnel dried up some of the springs, which theretofore had come to the surface, and which constituted the headwaters of Snake creek, and ever since the waters which formerly came to the surface through said springs thereafter flowed out of the mouth of said Mountain Lake tunnel; that since the driving of plaintiff's tunnel the volume of water flowing out of the Mountain Lake tunnel has receded one-third, all of which waters formerly found their way into Snake creek and supplied the natural volume of flow thereof; that by constructing its tunnel plaintiff has interfered with the natural supply of the flowing waters of Snake creek; that before the digging of the tunnel the natural subsurface water supply of said creek found its way through natural channels into the stream, uniform in volume relatively during the low-water season; that since then, and by reason thereof, the store waters from within the mountain drained off more rapidly, and by reason thereof defendants are deprived of water, which otherwise they would have had, and so deprived during the irrigation season each year, when it is necessary for the maturing of their crops; that if plaintiff is permitted to extend said tunnel further it will still more lessen the water supply, and make the farms and homes of defendant's stockholders valueless.

The prayer of the counterclaim is for an injunction, enjoining plaintiff from asserting any claim to the waters flowing from said tunnel and quieting defendants' title to the water flowing from the tunnel and interfering with defendants' free and unrestricted use thereof, and also enjoining it from extending its tunnel further in the mountain. The reply of the plaintiff to the counterclaim is in effect a general denial of the material allegations alleged.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

It is admitted by the plaintiff in its brief that the evidence establishes that--

'The defendants' predecessors in interest had, more than 25 years before the driving of the tunnel, appropriated all of the water flowing in Snake creek and at some considerable distance below the portal of the tunnel, and diverted the water on to their lands for the purpose of irrigation. These lands are arid, and do not bear any crops unless irrigated, and without water were of little or no value.'

The learned District Judge reached his conclusion that the owners of the tunnel were entitled to the water which flowed from it, not on the ground that the preponderance of the evidence sustained the plaintiff's claim, but on the ground that notwithstanding the prior appropriation of all the waters of the creek by the Irrigation Company and the fact that the portal of the tunnel was located near the bank of Snake creek and up towards its sources, the burden of proof was on the prior appropriators to show that the waters in the tunnel were derived from subterranean waters which flowed into the creek, if they had not seeped into and been collected...