Munsee v. McKellar

• Decision Date: 04 January 1911
• Docket Number: 2121
• Citation: 39 Utah 282,116 P. 1024
• Court: Utah Supreme Court
• Parties: MUNSEE v. McKELLAR et al

116 P. 1024

39 Utah 282

MUNSEE v. McKELLAR et al

No. 2121

Supreme Court of Utah

January 4, 1911

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Eugene Munsee against Joseph McKellar and another.

Judgment for defendants. Plaintiff appeals.

REVERSED AND NEW TRIAL GRANTED.

Halverson & Pratt for appellant.

Moyle &amp Van Cott for respondents.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

This suit involves the ownership and use of the waters of certain springs, called Munsee's Springs, situate near the desert, in Tooele County. The plaintiff is the owner of a tract of land consisting of about 120 acres; the defendants the owners of about 160 acres adjoining. The springs are about three miles from the plaintiff's land and a little farther from the defendants' land. It was alleged by the plaintiff that at the time of the filing of his complaint he was, and for more than thirteen years prior thereto he had been, the owner of the waters of the springs and of a ditch from the springs to his lands; that during all of such times, by means of the ditch, he had diverted and used the waters for irrigation and culinary purposes, and for the watering of live stock, and that the defendants asserted an unfounded claim or interest in and to the waters and the ditch. The defendants denied the allegations of the complaint, and for affirmative relief alleged that they, in 1904, for the purpose of irrigation and for domestic purposes, constructed a ditch from the springs to their lands, by means of which they diverted all the waters of the springs and used them on their lands, and ever since so continued to use them. Each prayed for a judgment quieting title. The plaintiff filed a reply, denying the affirmative allegations of the answer. The case was tried to the court.

Evidence was introduced on behalf of the plaintiff tending to show that in the year 1895, he settled upon his land and built a house, a stable, and a corral. The waters of the springs, as testified to by some of the witnesses, consisted of about a one-half second-foot flow; others testified that they were sufficient to fill a good plow furrow, and in high water time ran down the wash. In 1895 the plaintiff constructed a ditch from the wash to his land, and used the water upon it for irrigation. Later he constructed a ditch from the springs to a lake and from there to his lands. Experiencing some difficulty in having the waters reach his lands in that manner, he constructed another ditch direct from the springs to his lands, which was completed in 1899. Between 1895 and 1904, prior to the time the defendants claimed an interest in the water, the plaintiff also used the waters of the springs to irrigate some lands near the lake, about two miles from his lands, upon which he raised some potatoes, and he also irrigated seven or eight acres of the land subsequently acquired by the defendants, upon which he also raised some crops. He also cultivated and raised crops on about eight acres of the lands owned by him, which were irrigated by the waters of the springs, and also used such waters on a meadow on his lands, consisting of about thirty acres, and from which he took from twenty to thirty tons of hay annually; and he also watered his stock, consisting of sixty to two hundred head. Plaintiff and his witnesses further testified that from 1895, until interfered with by the defendants, he had diverted and used all of the waters of the springs for irrigation and for domestic purposes, and for watering live stock.

Evidence was adduced on behalf of the defendants tending to show that in the fall of 1903, or spring of 1904, they entered upon their lands and built a house and a corral, and in the spring of 1904 they constructed a ditch from their lands to the wash, by means of which they diverted the waters of the springs and used them upon their lands; that in 1904 and 1905, they had cultivated and irrigated about two acres of ground, about ten acres in 1905, and twelve or fourteen acres in 1907, and that from 1904 to 1907 they had used all the waters of the springs on their lands, except when turned off and interfered with by the plaintiff. The defendants further testified that in 1904, when their ditch was constructed and the waters diverted by them, the waters of the springs were then running to waste down the wash, and that there were no indications of any ditch running from the wash or from the springs to plaintiff's lands, and that there was not anything to show that the waters of the springs had ever been used on plaintiff's lands. Other witnesses on behalf of the defendants testified that they saw no ditch running from the wash or from the springs to plaintiff's lands. It was also testified to, on behalf of the defendants, that there were a number of springs, variously estimated at from four or five to eleven, on the lands of the plaintiff, and that his meadow was watered from such springs, and not from the Munsee Springs, and that his meadow was low and wet and needed draining, and that the ground cultivated by the plaintiff on his lands consisted of only about one acre, and was watered, not from the waters of the Munsee Springs, but from a spring or springs on his own lands. The plaintiff and other witnesses testified that the ground cultivated by him on his land, and some of the meadow lands, were so situated that they could not be watered from the springs on his lands, and that the lands cultivated by him, and a portion of the meadow lands, were irrigated with the waters of the Munsee Springs.

That the plaintiff, prior to 1903, had constructed ditches about the Munsee Springs, some of which were a quarter to a half a mile in length, and a ditch or ditches running from the springs down the wash and towards the plaintiff's lands, and that he had diverted the waters of the springs and used them on lands cultivated by him and upon which he raised crops near the lake, and on lands subsequently acquired by the defendants, is shown by the evidence without any substantial conflict. As to whether the plaintiff, prior to 1904, had extended the ditches to his lands, and whether, prior to that time, he has used any of the waters of the Munsee Springs on lands then owned by him, the evidence is in conflict. In that respect the plaintiff, and other witnesses on his behalf, testified that they ploughed and dug ditches from the springs and from the lake running to plaintiff's lands, by means of which the waters of the Munsee Springs were, prior to 1904, conveyed to and used upon the lands then owned by the plaintiff. Defendants and their witnesses testified that in 1904 there were no indications of any ditch running from the wash or from the springs to plaintiff's lands. Some of them testified that there then were no such ditches others merely testified that as they casually passed over the country they saw no such ditches. The defendants, however, and other witnesses on their behalf, who also had knowledge of the facts, testified that in 1904, and before the defendants constructed their ditch, there were indications of a ditch or ditches about the springs, and indications that land near there, and some ground on the lands subsequently acquired by the defendants, had been cultivated. By whom the ditches had been made and the ground cultivated, they testified they did not know.

The court found that in the year 1904 the defendants, for the purpose of irrigating their lands and for the watering of live stock, and for culinary purposes, constructed a ditch from their lands to those certain natural springs of water which were then unappropriated waters, known as Muncee's Springs," and appropriated and diverted all the waters of the springs, and conveyed them to their lands for irrigation and the growing of crops, for culinary purposes, and for watering live stock, and that they ever since had used all of the waters of the springs for such purposes; that they had cultivated about fourteen acres of their lands upon which crops had been raised by them, and that the water so used by them was...