Morris v. Smith

• Decision Date: 13 January 1930
• Docket Number: 4761
• Citation: 76 Utah 162,288 P. 1068
• Court: Utah Supreme Court
• Parties: MORRIS et al. v. SMITH

288 P. 1068

76 Utah 162

MORRIS et al. v. SMITH

No. 4761

Supreme Court of Utah

January 13, 1930

Rehearing Denied June 19, 1930.

Appeal from District Court, Second District, Morgan County; J. N Kimball, Judge.

Action by Conway Morris and others against Hyrum Smith. Judgment for plaintiffs, and defendant appeals.

REVERSED AND REMANDED with directions.

C. R Hollingsworth and J. E. Evans, both of Ogden (S. R. Thurman, Delbert M. Draper, and Allen G. Thurman, all of Salt Lake City, of counsel), for appellant.

Pratt & Pratt, of Ogden, and W. W. Porter, of Morgan, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

This is a suit in equity to determine the rights of adverse claimants to the use of water which flows from what is known as the Stewart spring. The spring is located in the northwest quarter of section 26, township 4 north, range 2 east of the Salt Lake Meridian, in Morgan county, Utah. The plaintiffs allege in their complaint that they are the owners of the right to the use of all of the water flowing from the spring together with the right to course the water to their lands through a ditch which crosses defendant's land. They also allege that defendant had wrongfully deprived them of the use of their water to their damage. They pray judgment that their rights be quieted, that the defendant be enjoined from interfering with the water and the ditch, and for damages to their crops caused by the defendant depriving them of the use of the water. The defendant in his answer denies that the plaintiffs are the owners of the right to use the Stewart spring water. He also filed a counterclaim wherein he alleges that he is the owner of the right to the use of all of the water flowing from the Stewart spring and that he has been damaged by the plaintiffs wrongfully depriving him of the use of the water. Defendant prayed judgment that his right to the use of the water be quieted, that plaintiffs be enjoined from interfering with his use of the water, and for damages sustained by him because of the plaintiff's wrongfully depriving him of the use of the water.

A trial was had to the court sitting without a jury. Findings of fact, conclusions of law, and a decree and judgment were made and entered in the cause. By the judgment and decree plaintiffs are awarded the right to the use of all of the water which flows from the Stewart spring from June 30th to September 15th of each and every year, provided that if prior to September 15th the water from the Stewart spring shall, from natural causes, cease to flow down to plaintiffs' land then defendant may use the same. The right to the use of the water flowing from the Stewart spring during the remainder of the year is left undetermined. The plaintiffs were also awarded an easement for a ditch across defendant's land. The defendant is perpetually enjoined from interfering with the water awarded to the plaintiffs and from interfering with the right of the plaintiffs to clean out and repair the ditch which conveys the water from the Stewart spring to their lands. Plaintiffs were also awarded a judgment against the defendant for damages in the sum of $ 25.

The defendant prosecutes this appeal from the judgment and decree. By his assignments of error the judgment and decree are attacked upon various grounds, among them that the findings of fact and conclusions of law and the judgment and decree are contrary to and are not supported by the evidence.

The Stewart spring is located upon land which, at the time of trial, was owned by one Davis. So far as is made to appear, Davis claims no interest in the water here in dispute. Defendant owns a tract of land which lies near the spring and to the northwest thereof. It is upon this tract of land that defendant claims the right to use the spring water. The plaintiffs are the owners in severalty of various tracts of land lying northwesterly from defendant's land. It is upon these tracts of land that the plaintiffs claim the right to use the spring water. At the time of trial, and for many years before that time, the water from the spring flowed northwesterly through an artificially constructed ditch which crosses defendant's land and extends to the lands owned by the plaintiffs. There is a conflict in the evidence as to who first applied the spring water to a beneficial use and as to the extent of such use. The plaintiffs offered evidence tending to show that they and their predecessors in title have used the water from the spring to irrigate their lands for more than fifty years. Likewise the evidence offered by defendant tends to show that he and his predecessors in title have used the water from the spring to irrigate the land now owned by him for a similar period. For reasons presently to be considered we do not deem it necessary to determine who first applied the water in controversy to a beneficial use.

The undisputed evidence shows that in about the year 1889 the predecessors in title to the lands now owned by the plaintiffs made arrangements to secure water from sources other than the Stewart spring with which to irrigate their lands. In order to convey the water which it was proposed to acquire onto the lands now owned by the plaintiffs, it was necessary to construct an artificial ditch across the land now owned by the defendant. A committee consisting of David Clawson and Thomas Grover were appointed by plaintiffs' predecessors in title to secure the necessary right of way for an irrigation ditch across the land of John Preece, the defendant's predecessor in title. The committee thus appointed succeeded in securing the consent of Preece to the construction of the proposed irrigation ditch across his land upon the condition that the right of Preece to use the water flowing from the Stewart spring should not be interfered with by them. Pursuant to this agreement plaintiffs' predecessors in title constructed the irrigation ditch across the land then owned by John Preece and now owned by the defendant. The ditch so constructed was used for a period of one or two years to convey water from what is referred to in the evidence as the Millrace ditch to the lands now owned by the plaintiffs and there used for irrigation. Difficulties were encountered in securing water from the Millrace ditch, and after one or two years the attempt to secure water from that source was abandoned. There is a conflict in the evidence as to whether or not any water from the Stewart spring reached the lands now owned by the plaintiffs before the ditch across the land now owned by the defendant was constructed. The evidence shows without substantial conflict that since the ditch was constructed across the land now owned by the defendant some water from the Stewart spring has been diverted into that ditch and at times has been used by...