Rogers v. Cook

• Decision Date: 10 June 1892
• Court: Utah Supreme Court
• Parties: R. M. ROGERS, RESPONDENT, v. DANIEL COOK AND OTHERS, APPELLANTS

30 P. 234

8 Utah 123

R. M. ROGERS, RESPONDENT, v. DANIEL COOK AND OTHERS, APPELLANTS

Supreme Court of Utah

June 10, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The facts in regard to the question of evidence, shown by the record, are as follows:

Witness Roswell Rogers, testified on his direct examination, as follows: "My father took the water out of the main ditch when the water first came over the hill at a point about fifty yards from Mr. Moore's house. It ran from there down in an old road. Have taken it out myself. Took out nearly the whole stream; sometimes used it one day and a night, sometimes two days. It was generally turned off by somebody else when we got through; don't know who turned it off. When we turned it on we generally put a dam in the ditch. It has been used every year in this way until last year when he made a different ditch and carried it on the high land."

Then on cross-examination he testified as follows: "I know William K. Henry; worked for him on Mr. Moore's farm in 1886. Don't remember telling him that we had an interest in the Alta ditch at one time, but that we did not keep the assessments and that the assessments had eaten it up long ago. Think I would recollect it if I had. Do not remember telling Mr. Henry the same year that the wheat on my father's farm on the lower land was dry wheat, raised without water."

Then W K. Henry, called for the defendants, testified as follows "Had a conversation with Roswell Rogers while he was helping me in the wheat field. He said to me: 'We did have an interest in the Alta ditch at one time, but we did not keep up the assessments, and I suppose the assessments have eaten it up long ago.' (This testimony objected to and the court stated that it was not material but he would let it go on the record. Defendants except.) In '86 I saw the crops growing on Rogers' lower land; there was wheat and rye and corn. I talked with Mr. Roswell Rogers about the wheat. Q.--Did he say to you in that conversation that the wheat was dry wheat? Objected to as immaterial. Objection sustained. Exception by defense. Mr. Rogers himself told me he raised good crops of rye without water." It will be observed that the witness, Rogers, was not asked whether the wheat raised was dry wheat or not."

The issues were as follows: The complaint in this case was filed August 7, 1890, and alleged that plaintiff acquired by appropriation, in 1882, one-twelfth of the waters of the Alta ditch, and acquired by purchase afterwards an additional one-twelfth, making one-sixth in all. That he used the water on his lands without interruption until 1888, at which time defendants shut off all but one-twelfth, and refused to allow plaintiff to use more than one-twelfth, to his damage in the sum of $ 500.00.

Answer filed August 23, 1890, denies that plaintiff is the owner of any water by appropriation, but admits that he is the owner of one-twelfth by purchase; denies that plaintiff ever appropriated any of the said waters, or ever used any except the one-twelfth so purchased. It denies the damages and affirmatively alleges that the defendants and their predecessors in interest, between 1877 and 1882, appropriated all of the waters of the Alta Ditch, except the said one-twelfth, and that they are the owners thereof by prior appropriation and use for beneficial purposes.

The court rendered its findings of facts and conclusions of law and the same were filed January 5, 1891. The findings are substantially in the language of the complaint. The decree made and filed the same day gives the plaintiff one-sixth of the waters of the Alta ditch, and enjoins the defendants from interfering with his use thereof.

Affirmed.

Mr. George Sutherland, for the appellants.

Mr. J. W. N. Whitecotton, for the respondent.

MINER J. ZANE, C. J., and ANDERSON, J., concurring.

OPINION

MINER, J.:

This action was brought by the plaintiff against the defendant to determine his right to one-sixth of the waters of Alta ditch. Plaintiff claims one-twelfth of the water as an original appropriator about the year 1880, and the remaining one-twelfth by...