Patterson v. Ryan
| Decision Date | 27 April 1910 |
| Docket Number | 2099 |
| Citation | 108 P. 1118,37 Utah 410 |
| Court | Utah Supreme Court |
| Parties | PATTERSON v. RYAN |
Appeal from District Court, Fifth District; Hon. Joshua Greenwood Judge.
Action by Edward Patterson, as administrator of John Patterson deceased, against John Ryan.
Judgment for defendant. Plaintiff appeals.
REVERSED AND REMANDED.
William F. Knox for appellant.
E. W Senior and Allen T. Sanford for respondent.
This action was brought by appellant, as administrator of the estate of one John Patterson, deceased, to quiet title to the use of the water flowing from certain springs known as the Potsum Pah springs, situate in Pine Grove Valley, Beaver County, Utah.
The facts which we deem material, as developed at the trial, in substance, are: That the land on which the springs in question are situated is arid, and up to the time that this action was commenced continued to be unsurveyed public domain. In the year 1896 one Thomas McCune filed a desert entry on the lands surrounding the said springs, constructed one or two small reservoirs to hold the waters flowing therefrom, and thereafter placed troughs at the springs, conducted the water into them, and used the same to water live stock; that said desert entry was contested, and in August, 1903, was duly canceled by the local United States Land Office, and the action of the local office was approved by the Commissioner of the General Land Office at Washington, D. C., on the 19th day of January, 1905, and said McCune by said decision forfeited all rights under his desert entry aforesaid. In March, 1901, and while the desert entry of said McCune was still, prima facie at least, in force, but when said land and springs were seemingly abandoned and the water flowing from said springs was not being used by any one except as hereinafter stated, the deceased, John Patterson, took possession of the lands surrounding the springs and of the springs, erected a log cabin 16x14 feet near said springs and constructed a corral, and fenced in a few acres of the land near the springs, and, in connection with the improvements aforesaid, he also cleaned out the reservoirs constructed by said McCune. Said Patterson died on the 4th day of January, 1905. From March, 1901, to the time of his death, he maintained the corral and fences aforesaid, and a portion of the time during each year stayed in the cabin aforesaid, and at such times he used the water from the springs for his culinary needs and to water "a team and saddle horse," which the testimony shows he kept with him when staying in said cabin. While Patterson fenced in some land which the testimony shows could have been irrigated, it is clear that he never planted any crops or used any water for irrigation, except what by force of gravity ran over a portion of the inclosed lands where some "salt grass" was growing. The testimony also shows that for many years prior to 1901 both the sheep men and cattle men used the water of the springs to water their flocks and herds when they were ranging in the vicinity of the springs in the winter season; that in 1901, and for several seasons and at various times the deceased, Patterson, would require the sheep men to pay him something for watering their sheep at the springs. The number of times that such charges were made is not clear, but it did not occur very often. Some of the sheep men, however, used the water to water their sheep at times during the years aforesaid without paying the deceased, or without asking him for the privilege to do so, and the cattle men, it appears, used the water from the springs without paying the deceased anything, but neither the sheep men nor the cattle men after March, 1901, disputed or interfered with the deceased's right to use the water for the purposes he used it as aforesaid. The defendant was one of the principal cattle men who watered cattle at the springs for many years in the manner aforesaid, but he apparently had no special rights in the water of the springs up to the time this action was commenced, except to use it for his cattle, as above stated. There is much evidence in the record relating to entries of the lands surrounding the springs in question and the proceedings in the United States Land Office relative thereto, all of which we deem immaterial. The evidence is conclusive that the deceased at the time of his death had no right in or to the lands surrounding the springs or any lands in their vicinity, but both the legal and the equitable title to all of said lands was in the United States at the time aforesaid and when this action was commenced. After the death of said Patterson, to-wit, on the 26th day of December, 1905, the defendant filed his application to appropriate the water of said springs with the state engineer of the State of Utah in accordance with chapter 108, Laws Utah 1905, but the state engineer, just before the time this action was commenced, rejected said application, and the defendant did not within the time, nor as provided by said chapter, bring an action in any court to review the action of said state engineer in rejecting said application, but he did set forth the facts with respect to said application and the rejection thereof in this action in the nature of a counterclaim.
Upon substantially the foregoing facts, the court found in favor of the defendant, and found that the said John Patterson, deceased, had acquired no rights to the use of the water of said springs or any part thereof, and adjudged the right to the use of the water thereof to be in the defendant. The administrator appeals from the court's findings and judgment.
Counsel for appellant urge that, in view of the undisputed facts, the court erred in its findings and judgment in so far as it adjudged that the plaintiff, as the administrator of the estate of said John Patterson, deceased, was not entitled to the use of the water of said springs, and also in its findings and judgment that said defendant was entitled to the use of said water. It seems to us that the court laid too much stress upon the question of the right of possession or ownership of the lands surrounding the springs. Even if it be assumed that some one of the different parties who at some time claimed some rights in said land at one time had some equitable right or title thereto, yet the evidence is conclusive that no one ever used, or attempted to use, the water on said land for irrigation or for the purpose of producing crops of any kind thereon, not even grass for pasture. In view of this fact, any one claiming the legal right to use said water had to base that right upon a use and for a purpose other than irrigation. While the evidence shows that both the sheep men and the...
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