Orient Mining Co. v. Freckleton

• Decision Date: 22 December 1903
• Docket Number: 1455
• Citation: 27 Utah 125,74 P. 652
• Court: Utah Supreme Court
• Parties: THE ORIENT MINING COMPANY, a Corporation, Respondent, v. W. W. FRECKLETON, Appellant

74 P. 652

27 Utah 125

THE ORIENT MINING COMPANY, a Corporation, Respondent, v. W. W. FRECKLETON, Appellant

No. 1455

Supreme Court of Utah

December 22, 1903

Appeal from the Fifth District Court, Juab County.--Hon. W. C. Hall Judge.

Action to quiet plaintiff's alleged title to certain water. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED IN PART: REVERSED IN PART.

C. S Patterson, Esq., and Geo. W. Moyer, Esq., for appellant.

Messrs Powers, Straup & Lippman and F. J. Gustin, Esq., for respondent.

The evidence shows that he stood by and made no objection when the respondent first began its work upon the spring. He went farther than that; and when the respondent suggested to him that he aid in developing the flow of water from the spring, that he could have such surplus water as defendant did not use, appellant, instead of making claim to the water, came over the next day and helped the respondent to dig its ditch.

One cannot stand by without asserting and making known a claim, if he has any, while another expends his money, his time and his labor in making improvements under an honest belief that he has the right to make those improvements. Park v. Killham, 8 Cal. 77; Lehi Irrigation Co. v. Moyle, 4 Utah 327; Fabian v. Collins, 3 Mont. 229; Curtis v. Le Grande Hydraulic Water Co., 25 P. 378 (Ore.) .

BASKIN, C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--This is an action to quiet the plaintiff's alleged title to a spring.

Among other allegations of the complaint it is alleged, in substance, that the plaintiff, in August, 1898, under an honest claim of right, appropriated the water of a certain spring situated on the land described in the complaint; that at that time water from the spring did not flow therefrom, upon the surface, but seeped away through the ground; that afterwards plaintiff, by excavations and other means, increased the flow of the spring, and that thereafter the plaintiff, at considerable expense and labor, erected a tank, and conducted the water from the spring through an iron pipe into the tank; that from the time of said appropriation until the interference of the defendant, in the summer of 1900, the plaintiff, without interruption or hindrance from defendant or any other person, peacefully enjoyed the use of the water of the spring for its culinary and other beneficial purposes, and that all of the water of the spring was and is needed by the plaintiff for the purposes for which it was, and still is, used by plaintiff; "that the said defendant stood by, and, with full knowledge, and without any objection or claim of right to the waters of said spring, suffered and allowed plaintiff to increase the flow of the water of said spring, and to lay its said pipe line as aforesaid, and to erect its said tank, and to use and haul away the water so collected in said tank whenever the necessities of plaintiff demanded; that in the summer of 1900 said defendant wrongfully entered upon said land, and interfered with and greatly damaged plaintiff's said pipe line, and dug up and plowed the soil and earth, and rendered said pipe line valueless, and prevented plaintiff from taking any water from said spring, and threatened in the future to prevent plaintiff from using said water," without any right whatever, and claims an estate or interest in the waters of the spring adverse to the plaintiff.

The defendant, in his answer, denies the right to the water alleged by the plaintiff, and claims the same by virtue of a prior appropriation and use thereof by him. A decree awarding the waters of the spring to the plaintiff, and quieting its title thereto, was made and entered in the court below. The appellant took 11 exceptions to the findings, the substance of which is that the findings and decree are not supported by the evidence. It appears from the evidence that at the time the plaintiff made the improvements and began to use the waters of the spring, as alleged in the complaint, the land upon which the spring is situated, belonged to the United States. The following facts were found by the court, viz.: "That on or about the 1st day of August 1898, plaintiff entered upon the land [where the spring is situated], and thereupon proceeded to appropriate the waters of said spring, and to develop and improve the same; that plaintiff excavated said spring, and sunk a wooden pipe into the same, and attached thereto an iron pipe to conduct the water from said spring to a point where it could be used by plaintiff in its said business, and that plaintiff, in its work, developed and produced a flow of water from said spring, and thereafter, at considerable expense and labor, erected a tank, and connected the same by the said iron pipe with said spring for the purpose of collecting the waters therefrom, and plaintiff did thereafter collect in said tank the waters of said spring, and used the same in and about its business of mining, and that from time to time, until the commencement of this suit, plaintiff worked upon said spring, and improved the same, and without the interference of any person, until the year 1900; that from the 1st of August, 1898, until the summer of 1900, plaintiff used and enjoyed the waters of said spring without molestation or hindrance from defendant or any other person; that on or about the 1st day of August, 1898, when plaintiff...