Muir v. Kay

• Decision Date: 05 October 1925
• Docket Number: 4236
• Citation: 244 P. 901,66 Utah 550
• Court: Utah Supreme Court
• Parties: MUIR et al. v. KAY et al

244 P. 901

66 Utah 550

MUIR et al. v. KAY et al

No. 4236

Supreme Court of Utah

October 5, 1925

Rehearing Denied April 9, 1926.

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Suit by W. S. Muir and another against Lorenzo Kay and others. Judgment for plaintiffs, and defendants appeal.

AFFIRMED.

Pratt &amp Pratt, of Ogden, for appellants.

Le Roy B. Young, of Brigham City, for respondents.

STRAUP, J. GIDEON, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

STRAUP, J.

The appellants, the defendants below, own lands in section 1, township 11 north, etc., in Box Elder county, Utah; respondents, plaintiffs below, in the northwest quarter of the northeast quarter of section 12 adjoining section 1 on the south. Both sections formerly were owned by a common grantor, the Utah-Idaho Sugar Company. When conveyances at different times were made by it of the several tracts or parcels of land in both sections, a strip of ground 2 rods in width was either reserved in the grant or not granted at all, on all sides of the sections, and a strip running through the center of the section north and south and one running through the center east and west. In some of the grants the strip was reserved "for roads," in some "for roads and etc." and in others the strip was not granted, the tracts conveyed not including the strip. These strips, especially the strip of 2 rods running through the center of section 1 north and south were used as a public road or highway for 20 years or more, and were fenced. The road running through the center of section 1 from north to south was found by the court, and it is admitted by all parties concerned, to be a public road or highway. It, however, was maintained by the abutting land owners and perhaps by others owning lands in the section. The defendants' lands abut the highway running through the north half and the north half of the south half of section 1, some on the east and some on the west side of the highway. H. H. Cordon owns the southwest quarter of the southeast quarter of section 1, abutting the highway on the east, and George and L. E. Abbot the southeast quarter of the southwest quarter of section 1, abutting the highway on the west. None of them is here complaining. Plaintiff Horne's land is the west half of the west half of the northeast quarter of section 12, abutting the highway on the east, and adjoining Cordon's land on the south, and plaintiff Muir's lands adjoin Horne's lands on the east. The common grantor, the Utah-Idaho Sugar Company, when it sold and conveyed the various tracts or parcels of lands to the defendants, the plaintiffs, or their predecessors in interest, and to others, also sold and granted to them water rights for such lands from its canal coursing through the country a short distance north of section 1. To convey the waters to their lands, a lateral canal or ditch was constructed by the water users from the canal to the center of the north boundary line of section 1. There the lateral was divided into three branches, one running to the east and one to the west, along the north boundary line of section 1, and one running in a southerly direction, mainly on the roadway running north and south through the center of section 1, part way on the east and part way on the west side of the road, to the northwest corner of Cordon's lands, and from there coursed easterly along the north boundary line of Cordon's lands.

The water users conveying water through this ditch running through the center of section 1, for their mutual benefit, 20 years or more ago formed a corporation known as the Elwood Ditch Company, and such ditch was known as the Elwood ditch. Because of elevations, the plaintiffs could not irrigate portions of their lands from the Elwood ditch coursing easterly along the north boundary line of Cordon's lands, and had no right of way over his lands. Consequently, several years ago, plaintiffs obtained an oral permit from the local manager of the land and canal department of the sugar company to extend, and extended and constructed, a ditch southerly on the east side of the road or highway from the point where the Elwood ditch coursed easterly, to their lands adjoining Cordon's lands on the south and coursed water therein from the Elwood ditch to their lands to irrigate them in raising sugar beets and other crops. None of the defendants own land abutting the road along which the plaintiff's constructed such ditch; all of their lands abutting the road to the north thereof. The defendants, objecting to the maintenance of the ditch so constructed by plaintiffs, at different times filled it up and destroyed it, thereby depriving the plaintiffs of the use of water for their lands and injuring their growing crops. The plaintiffs brought this action to enjoin the defendants from interfering with the ditch and for damages. The defendants answered and counterclaimed, alleging that the strip 2 rods in width, and on which plaintiffs constructed the ditch, was dedicated by the sugar company, the common grantor, as a public highway, and as such was used by the defendants and the public generally 20 years or more and adversely to the owner of the fee thereof and without interruption or interference until the construction of the ditch by the plaintiffs, and that the defendants and their predecessors, as often as it became necessary, repaired the road and kept it in proper condition for traffic to the county road on the south boundary line of section 1, and that the construction and maintenance of the ditch by the plaintiffs were wrongful "and constituted a public nuisance and danger in the use of said road by defendants and other persons entitled to use the same, and rendered said road at times impassable and useless as such road," and for such reasons the defendants, claiming the right to do so, filled up the ditch and prayed that the plaintiffs be enjoined from further maintaining it.

The case was tried to the court, who found the issues in favor of plaintiffs, and permanently enjoined the defendants from interfering with the ditch so constructed by the plaintiffs, awarded the plaintiffs $ 75 damages, and dismissed the counterclaim. The defendants appeal.

There is no controversy as to the ownership or location of the several parcels or tracts of land claimed to be owned by the plaintiffs or the defendants, or as to the existence or location of the road 2 rods in width through the center of sections 1 and 12 from north to south, or that any of the lands of the defendants abutted the road along which the ditch of the plaintiffs was constructed, or that the Elwood ditch for more than 20 years coursed through the center of the section chiefly on and along the side of the highway to the northwest corner of Cordon's lands, from which point the plaintiffs constructed their ditch to their lands on and along the east side of the highway. Nor is there any serious contention that the plaintiffs, to irrigate their lands, were entitled to waters from the canal and to course them through the Elwood ditch, or that, because of elevations, plaintiffs could not irrigate portions of their lands from the Elwood ditch without extending the Elwood ditch beyond the northwest corner of Cordon's lands. As to that, and among other things, the court found:

"(7) That in order for plaintiffs to convey the water onto a part of their premises from the point where said ditch turns eastward, it is necessary that said ditch be extended along the said east side of said highway to the south line of section 1, thence, across the public highway [the county road running east and west] and onto the northwest corner of the premises belonging to the plaintiff W. R. Horne, and that during the year 1920 plaintiffs' predecessors in interest obtained from the Utah-Idaho Sugar Company, the owners of the fee of said highway, a right to construct said ditch along the east side of said highway, but within said highway. * * *"

"(9) That plaintiffs have no other way in which to convey their water upon said premises other than through the ditch above described [the ditch constructed by the plaintiffs] without condemning the right of way across the premises of H. H. Cordon. * * *"

It is claimed these findings, or at least portions of them, are not supported by the evidence. That the plaintiffs and their predecessors used and conveyed waters from the canal through the Elwood ditch is not seriously disputed. The contention made in such respect is that the plaintiffs, independently of such conveyance and use, did not show any right to do so. But there is some evidence independent of such conveyance and use tending to show such right, which evidence is not disputed. In the absence of evidence to the contrary, and because of the conveyance and use by plaintiffs of such waters from the canal through the Elwood ditch, we think the right to the use of such waters and to course them through the Elwood ditch, such matters being only collaterally in issue, was sufficiently shown to support the findings.

But the appellants say though the fee of the 2 rod strip was in the common grantor, still the strip, having been dedicated for a public highway and as such used for more than 20 years, the common grantor could not by oral grant, much less could its local manager, give an oral permit to the plaintiffs to construct a ditch on any part of the highway, nor could the common grantor, by conveyance in writing, properly do so because to grant such a permit would be to place an unauthorized burden on the easement for highway purposes, and would be in conflict with it. The only evidence in the record that the Utah-Idaho Sugar Company granted the plaintiffs a permit to construct the ditch is that...