Nephi Irr. Co. v. Bailey

• Decision Date: 26 May 1947
• Docket Number: 7027
• Citation: 181 P.2d 215,111 Utah 402
• Court: Utah Supreme Court
• Parties: NEPHI IRR. CO. v. BAILEY et al

181 P.2d 215

111 Utah 402

NEPHI IRR. CO. v. BAILEY et al

No. 7027

Supreme Court of Utah

May 26, 1947

Appeal from District Court, Fifth District, Juab County; John L Sevy, Jr., Judge.

Action by the Nephi Irrigation Company against W. Lee Bailey and another for conversion of sand and gravel. From a judgment of no cause of action, the plaintiff appeals.

Affirmed.

P. N Anderson, of Nephi, for appellant.

James P. McCune, of Nephi, for respondents.

Wolfe Justice. McDonough, C. J., and Pratt, Wade, and Latimer, JJ., concur.

OPINION

Wolfe, Justice.

This is an appeal by the plaintiffs from a judgment of no cause of action in a suit for conversion of sand and gravel.

The facts show that the plaintiff is a mutual irrigation corporation engaged in the distribution of water in the vicinity of Nephi, Utah. One of the company's sources of supply is Salt Creek Canyon, from which a stream of water flows westerly through Nephi and into the company's distribution system. This channel traverses the southeast corner of Lot 3, Block 26, Plat "A," of the Nephi Townsite Survey, owned by the defendants. The defendants' predecessor obtained title to this lot under a patent from the United States of America, issued May 1, 1872. At that time and ever since, according to the stipulation of the parties, the plaintiff company has had an easement to flow water through this channel and in aid thereof to clean sand and gravel from the channel and to pile it on the banks. The significance of this provision is indicated by the fact that during the spring and early summer the flood waters annually deposit about 2000 cubic yards of sand and gravel in that portion of the channel passing through Lot 3.

From year to year the deposits of sand and gravel have been scraped up onto the banks of the stream and thereafter removed by plaintiff and others. During the winter of 1944-1945 the defendants took at least fifty cubic yards of the material for use in a building which they were constructing. Plaintiff sued for the conversion of that gravel. The defendants answered, admitting the taking of the gravel but claiming that the title thereto was in themselves rather than in the plaintiff. This raises the sole question before us: Who has title to the sand and gravel?

Undoubtedly, defendants owned the stream bed, for title to land under nonnavigable waters passes from the United States to the grantee of the upland as incident to the grant, where title is acquired by patent from the Federal Government. Anderson-Prichard Oil Corp. v Key Okla. Oil. Co. et al., 1931, 149 Okl. 262, 299 P. 850.

When the gravel settled in the bed, it thereupon became defendant's property. Defendants' counsel contends that they acquired title to the gravel under the doctrine of "accretion." That is not correct. "Accretion" is defined in 1 Words and Phrases, Perm. Ed., page 576 as follows:

" To constitute 'accretion,' there must be gradual and imperceptible addition of soil to shoreline by action of water to which land is contiguous." (Italics added.)

We do not have a shoreline problem here at all. The distinction is pointed...