Richlands Irr. Co. v. Westview Irr. Co.

• Citation: 80 P.2d 458,96 Utah 403
• Decision Date: 21 June 1938
• Docket Number: 5954
• Court: Utah Supreme Court
• Parties: RICHLANDS IRR. CO. v. WESTVIEW IRR. CO. et al

80 P.2d 458

96 Utah 403

RICHLANDS IRR. CO. v. WESTVIEW IRR. CO. et al

No. 5954

Supreme Court of Utah

June 21, 1938

Appeal from District Court, Fifth District, Millard County, LeRoy H Cox, Judge.

Proceeding for an adjudication of water rights by Richlands Irrigation Company against the Westview Irrigation Company and others wherein the Vermillion Irrigation Company filed a claim to which the Delta Canal Company and others filed objections. From an adverse decree, claimant Vermillion Irrigation Company appeals.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Henry E. Beal, of Richfield and Badger, Rich & Rich, of Salt Lake City, for appellant.

J. A Melville and Cheney, Jensen, Marr & Wilkins, all of Salt Lake City, for respondent Westview Irr. Co.

D. D. Crafts, of Delta, for respondent Richlands Irr. Co.

HANSON, Justice. MOFFAT and LARSON, JJ., concur. WOLFE, Justice, FOLLAND, Chief Justice, concurring in part, dissenting in part.

OPINION

HANSON, Justice.

This is a proceeding for an adjudication of water rights in the Sevier River pursuant to Chap. 67 of Laws of Utah 1919. The State Engineer reported a proposed determination, to which certain claimants filed written objections. Thereafter and on February 21, 1931, the various claimants filed in court a written agreement settling and determining the rights of each and stipulating that a decree might be entered accordingly. On August 1, 1934, the District Court entered an order directing the State Engineer to distribute the river water in accordance with said proposed determination as modified by said stipulation pending final decision of the case. On January 4, 1936, the State Engineer filed his petition in the court alleging that differences had arisen as to the proper interpretation of the stipulation and agreement in respect to the rights of the Vermillion Irrigation Company (hereinafter called "Vermillion"), and praying a judicial interpretation thereof in aid of his official functions in distributing the water. The Vermillion and those claiming adversely to it appeared and submitted their opposing contentions. The case was tried and the court's findings and decree were, in substance, embodied in the court's general decree determining rights in the river, which was entered shortly thereafter. The Vermillion by timely objections and motion for a new trial, asserted error in the court's findings, conclusions and decree unfavorable to its contentions, and upon appeal to this court have assigned error in the same particulars. An outline follows of so much of the record facts as will serve to present the questions on which the parties divide.

The Sevier River has its source in the highlands of western Garfield County, in southern Utah, and flows in a northerly course through Piute, Sevier and Sanpete into Juab County, thence southwestwardly discharging into Sevier Lake in Millard County. It is the longest river in the State. The lands along its upper courses were earliest settled and a number of large canals were constructed for the irrigation thereof. Those with which we are here concerned are in Sevier County.

The Vermillion's canal diverts water from the river at a point on its west bank near Richfield and extends northwardly 25 or 30 miles to a point north of Redmond. The canal of the Annabella Irrigation Company (hereinafter called "Annabella") has its intake on the east bank of the river about six miles south of the Vermillion intake. Tight dams are maintained just below each intake to facilitate diversion of the water into the canals. Between an eighth and a quarter of a mile above the Annabella dam is the intake of a short diversion ditch or channel called the millrace of the Sevier Valley Roller Mills (formerly Elsinore Roller Mills), by which water is diverted from the river for power purposes to operate the mills. This is a nonconsumptive use and the water is discharged immediately back into the river above the Annabella dam, and becomes available for irrigation. Further south, and upstream from the Annabella dam, spaced at various intervals along the river, are the intakes of the canals of the following named irrigation or canal companies, viz.: Richfield, Elsinore, Brooklyn, Monroe, Wells, Joseph, Elsinore Bench, Sevier Valley, and others which, with the Annabella and the Vermillion, are classed in the agreement settling rights and in the court's decree as Series A Primary water rights.

These Series A rights appear to have been early settled and adjudicated by court decrees, the first of which (termed the Jacob Johnson decree) was entered near the turn of the century. The other and later decree (termed the Morse decree), was entered May 16, 1906, and reduced somewhat the awards in the earlier decree, or some of them. The Morse decree awarded to said Series A Primary water rights as follows, so far as we need particularize:

(All year round consumptive basis)

Sec.Ft.

Annabella Canal

30.40

Vermillion Canal

37.80

All other canals, save one, a total of

176.76

(Part time consumptive basis)

Sevier Valley Canal

178.00

Total consumptive basis

422.96

(Nonconsumptive basis)

Elsinore Roller Mills Co. (now Sevier Valley Roller Mills Company): All the waters decreed to the Annabella and the Vermillion during the whole of each year, and from Nov. 1st to March 15 of each year, 32 sec. feet of water additional.

By the record and briefs it appears that subsequently to the Morse decree certain irrigation and canal companies interested in reclaiming large bodies of land along the lower courses of the river, finding insufficient unappropriated water by direct flow in the river available for their purposes, constructed at large cost and expense a dam in the river at a point in Sanpete County which backed the water up into an artificial lake or reservoir many miles in length, called the Sevier Bridge Reservoir, for storage and summer irrigation. Likewise, the Utah State Land Board constructed another dam, the Piute Reservoir, in the upper river channel in Piute County. Water filings were made for these reservoirs and other works in the State Engineer's office for all the available water not required to supply the earlier rights. Much additional lands came thus into actual or potential reclamation. The canal companies named as objectors and respondents in the caption appear to be interested in the water stored by one or both of these reservoirs, and are contesting the irrigation rights by direct flow claimed by the Vermillion.

These lower river canal companies became at once interested in acquiring and utilizing all of the unappropriated water of the river, and also in curtailing within the narrowest possible legal limits the water withdrawable from the river under the earlier appropriations, especially the primary rights under Series A of the Morse decree. They entered into negotiations with the officers and agents of the Series A canals to that end. After extended bargaining they finally reached an agreement with most of the Series A canals, defining and restricting their rights in the winter flow or winter diversion of the water into the canals, under the Morse decree. In return for rights surrendered by the latter in the nonirrigation season, they were given certain storage rights in the Piute Reservoir for water deliverable on a call basis chiefly during the irrigation season. Not all the Series A users thus traded with the reservoir people. The Vermillion refused to do so, or to sign any agreement until a mutually satisfactory formula was evolved, adequate to protect their diversion rights from the river both during and beyond the irrigation or growing season of each year. A number of tentative forms or clauses were proposed and rejected until at length the following was accepted by both sides and embodied in the agreement or stipulation settling the rights before mentioned, viz.:

"Vermillion Canal Company:

"All the water of Sevier River accumulating therein between the Annabella Dam and the Vermillion Dam, not exceeding the period of use from January 1st to December 31st in each and every year: provided, however, that whenever the water yielded between the Annabella Dam and the Vermillion Dam shall not be sufficient to supply to said Vermillion Canal Company the said 37.80 c. f. s., then the rights hereinbefore mentioned and set out as primary rights under Section A shall pro rate equally with the said Vermillion Canal Company.

"37.80 c. f. s."

This paragraph and another to be later noticed appear to be the source of contention between the parties. Notwithstanding the care and pains expended in drafting it, they appear to be now unable to agree upon its meaning. The Vermillion asserts that its prior rights under the Morse decree to divert 37.80 second feet of water whenever needed and beneficially used on a year-round basis, are preserved and protected thereby, and were intended so to be by the framers and signers thereof. The objecting respondents contend, on the other hand, that the words, "accumulating" and "yielded" as employed therein have reference to and mean only so much of the water present in the river between the two dams as is derived from the "make" of the river between the dams-that is, such water as the river picks up from its marginal percolations and flowage, surface and subsurface; and that the quoted words do not refer to or include the flow of the river coming down stream and passing over the Annabella dam. Also that the Vermillion's rights in the flow of the stream (in excess of its marginal pick-up) are limited and restricted by the agreement to such times during the irrigation season as there is water in the river available under the agreement for diversion and use by the other Series A owners, so as to be...