North Point Consol. Irr. Co. v. Utah & S.L. Canal Co.

• Decision Date: 05 February 1898
• Docket Number: 857
• Parties: NORTH POINT CONSOLIDATED IRRIGATION COMPANY, APPELLANT, v. UTAH & SALT LAKE CANAL COMPANY ET AL., RESPONDENTS
• Court: Utah Supreme Court

52 P. 168

16 Utah 246

NORTH POINT CONSOLIDATED IRRIGATION COMPANY, APPELLANT, v. UTAH & SALT LAKE CANAL COMPANY ET AL., RESPONDENTS

No. 857

Supreme Court of Utah

February 5, 1898

[Copyrighted Material Omitted]

Appeal from the Third district court, Salt Lake county. A. G Norrell, Judge.

Suit by the North Point Consolidated Irrigation Company against the Utah & Salt Lake Canal Company and others for damages, and an injunction restraining defendants from discharging befouled water into a certain canal, and to compel them to fill up certain ditches. There was a decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

On March 9, 1897, the plaintiff filed a complaint in the district court, in which it was alleged, among other things that prior to May 19, 1886, there existed an unincorporated association known as the North Point Canal Company, owning and using an irrigation ditch (describing it); that this association on February 27, 1886, secured, for a valuable consideration, a right to take water from and through a canal known as the "Salt Lake Surplus-Water Canal," for the purpose of irrigation; that afterwards, on May 19, 1886, it became incorporated under the name of the North Point Irrigation Company, and as such incorporation received a written grant from the Salt Lake Surplus-Water Canal Company on December 9, 1886, in compliance with the agreement made with the North Point Canal Company in the preceding February; that on August 15, 1889, the North Point Irrigation Company consolidated with the West Point Canal Company, another corporation, whereby the plaintiff corporation was formed; that the North Point Canal Company having obtained the right to take water, as alleged, for irrigation purposes, from and through the Salt Lake Surplus Canal Company, the North Point Irrigation Company succeeded to those rights upon its incorporation, and took possession thereof. The plaintiff also alleged that the defendants the Utah & Salt Lake Canal Company, the South Jordan Canal Company, and the North Jordan Irrigation Company each owns and operates a system of canals or water ditches to the south and west of the plaintiff's canals, and on higher ground, through which they take water from the river Jordan for the purpose of irrigating the lands lying below them; that the country through which they extend, and the land they irrigate, is in many places strongly impregnated with alkali and other mineral substances, which render the drainage water from it wholly unfitted for use for any culinary, stock, or irrigation purposes; that these canal companies have been accustomed to take out from the river Jordan large quantities of water in excess of what was used for the proper irrigation of the lands irrigated from it, and have turned upon them large quantities of waste water, which saturates the alkaline and mineralized lands; that this excessive use of irrigating waters, after percolating through and draining such mineralized lands, forms a chain of several small lakes or ponds and sloughs; that in order to relieve them, as well as the lands submerged by and adjacent thereto, the defendant canal companies constructed and maintained a series of artificial channels, connecting each and all of these several lakes or ponds and sloughs with a lake known as "Decker's Lake," by which they drain large quantities of strongly mineralized and saline waste and seepage waters into said Decker's Lake, and which is wholly unfit for irrigation or culinary use, and is destructive to all vegetable growth with which it comes in contact; that the three defendant canal companies, instead of draining such surplus and seepage water back into the Jordan river, the natural source from which they take their water, constructed about four years prior to the commencement of this action a large artificial drain ditch from Decker's Lake to the Surplus canal, through which the plaintiff receives its water for irrigation, culinary and other domestic purposes; and that they still continue to drain said seepage, mineralized, and alkali water into such Surplus canal, above the point where the plaintiff takes its water, rendering the same unfit for use, to the great and irreparable injury and damage of the plaintiff. The complaint concludes with a prayer for a writ of injunction restraining each and all of the defendants from discharging such seepage, surplus, impure, and befouled water into said Surplus-Water canal, or into plaintiff's canal, ditch, or ditches, and for an order to fill up such drain, ditch, or ditches as conduct said waters into said Surplus canal or White lake, which is a part of said Surplus canal. The complaint also contains a prayer for damages, and a general prayer for relief. The defendant canal companies filed their answer, in which they deny the allegations of plaintiff's complaint, and by way of defense allege, among other things, the following: That the defendants' canals are built on high ground, and that the contour of the lands lying adjacent thereto has caused the water to seep into holes and low places below, forming ponds and lakes; that, for the purpose of carrying off this surplus water, the defendant canal companies constructed ditches to convey the same into White lake, which is a part of the Jordan & Salt Lake Surplus canal; that said ditches were constructed in May, 1886, and have since been maintained for that purpose; that the natural drainage from Decker's lake and the other lakes mentioned in plaintiff's complaint is into White lake; that in 1886 said water was discharged into said White lake and Surplus canal by reason of the construction of the said ditches, and at that time plaintiff had no right, title, or interest in the Surplus canal, or the waters flowing into it; that they have a right by prescription. And they also rely upon the statute of limitations. The answers of the city of Salt Lake and the county of Salt Lake are similar to that of the canal companies, so far as they consist of denials.

It appears from the evidence on the trial found in the record That the Jordan & Salt Lake Surplus-Water Canal Company was incorporated on the 9th day of March, 1885. That its object and purpose, as expressed in its articles, were "to construct and manage a canal from a point [described] on the west bank of the Jordan river, * * * in a northwesterly direction, * * * to Salt Lake (a distance of about ten miles), for the purpose of diverting a portion of the water of the river from its channel, and causing it to flow into the lake at a point designated" on its beach; to prevent "the western portion of Salt Lake City, and the lands along the Jordan river, from being submerged in times of high water; and to make practicable the drainage, irrigation, and cultivation of large tracts of land hitherto unavailable for agricultural purposes, and to that end to construct and maintain all necessary dams, head gates, flumes, and other means necessary to control, regulate, and distribute water for the purposes mentioned." That the company commenced the construction of its canal between the points named in 1885, and completed it in the spring of 1886, at a cost of $ 19,000, contributed by Salt Lake county, Salt Lake City, and private persons. It also appears that the North Point Canal Company, an unincorporated association, at the same time owned a canal; that on the 27th day of February, 1886, its members held a meeting, and appointed two committees, one to prepare articles of incorporation, and the other to negotiate with the Jordan & Salt Lake Surplus-Water Canal Company to obtain the right to connect with its canal, and to take water therefrom for irrigation, culinary, and other domestic purposes; that at the same meeting they determined to repair their canal and build a new one the distance of one mile, in order to make such connection; that the Jordan & Salt Lake Surplus-Water Company agreed that the North Point Company might connect with its canal, and take water therefrom for such irrigation and domestic purposes; that later the company ratified the action of its committee; that the committee appointed to prepare articles of incorporation reported them to the company at a meeting held on May 17, 1886, and the members of the unincorporated company two days later duly incorporated the North Point Irrigation Company. Of these articles, 3 and 5 are as follows: "Art. 3. The object and pursuit of business shall be to provide for the irrigating of agricultural lands, and provide water for culinary and other purposes within the precinct of North Point, Salt Lake county, through the now existing so-called Salt Lake Surplus canal and the North Point canal, and such other as hereafter may be constructed by this association; to manage and control its legitimate proportion of the waters of the river Jordan; to construct and maintain all necessary dams, head gates, weirs, flumes, pipes, or other means that may hereafter be considered necessary to carry out the objects of this association." "Art. 5. The capital stock of this association shall consist of the several interests of the corporations hereof in the North Point Canal Company, together with the water rights thereto through the Surplus canal from the river Jordan as they now exist and appear of record in the office of the secretary of the North Point irrigation district of Salt Lake county, Utah territory [names of incorporators omitted], and the same be, and is hereby, transferred and made to represent the capital stock of this association, and declared fully paid up, and subject to assessment by the association from time to time, as may be required." It also appears that the members of the North Point Canal Company and the stockholders of the North Point Irrigation Company,...