Salt Lake City v. Salt Lake City Water & Electrical Power Co.

• Decision Date: 01 February 1902
• Docket Number: 1319
• Parties: SALT LAKE CITY, a Municipal Corporation, Appellant, UTAH & SALT LAKE CANAL COMPANY, a Corporation, Respondent, v. SALT LAKE CITY WATER & ELECTRICAL POWER COMPANY, a Corporation, et al., Respondents
• Court: Utah Supreme Court

67 P. 672

24 Utah 249

SALT LAKE CITY, a Municipal Corporation, Appellant, UTAH & SALT LAKE CANAL COMPANY, a Corporation, Respondent, v. SALT LAKE CITY WATER & ELECTRICAL POWER COMPANY, a Corporation, et al., Respondents

No. 1319

Supreme Court of Utah

February 1, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action to quiet title to the waters of the Jordan river. From a decree in favor of the defendants and interveners, the plaintiff, Salt Lake City, appealed.

AFFIRMED.

F. B Stephens, Esq., City Attorney, for appellant; Messrs Richards & Varian, of counsel.

Here is an attempt to make a judgment dependent upon upon a future contingency. Whether it is ever to be made effective depends upon the result of a judgment to be hereafter given in another action, and the payment of damages which may be awarded. A judgment must be certain and definitive. "A judgment is the final consideration and determination upon matters submitted to it. Whitwell v. Emery, 3 Mich. 84, 59, Am. Dec. 222; Battell & Collins v. Lowery, 46 Iowa 52, 53.

The city is charged, as a public trustee, with the management and control of all this class of property, which is not subject to be devoted to any other use. Without the constitutional provision (art. 11, sec. 6) such property might be devoted to other uses, through condemnation proceedings, but it would require express legislation to that effect. In view of the express prohibition of the Constitution against alienation of such property by the city, the Legislature would have no power to devote such property to other public uses. It is not attempted to do so in this State. The real value incident to property rights exists in the right to dominion and control. Fisher v. Bountiful City, 21 Utah 36. See 1 Lewis Eminent Domain, sec. 56, note 10.

Such property is not held by the municipality in its proprietary capacity, but is of such public utility and necessity that it is held in trust for the use of the citizens. New Orleans v. Morris, 105 U.S. 602; Meriweather v. Garrett, 102 U.S. 513; Ogden City v. Bear L. & R. W. W. Co., 16 Utah 451; Smith v. Mayor of Nashville, 7 L.R.A. 469; Huron W. W. Co. v. Huron, 30 L.R.A. 844.

It is not doubted that, in the absence of constitutional restrictions, the legislative authority extends to the taking of public property for other public uses, but in every case, the agency invoking the statutory authority to take the property of the citizen, in invitum, must lay its fingers upon the statute authorizing action. The eminent domain act of this State, "must be construed, as are all such acts, as having regard only for the taking of private property, unless there is either express or clearly implied authority to extend them further." Seattle & M. Ry. Co. v. State, 34 P. 551, and authorities cited.

L. R. Rogers, Esq., and Ogden Hiles, Esq., for respondent Power Company.

Under the statutes of eminent domain, where two public uses can stand together, without impairment or impediment of one by the other, the law is, that they must both so stand. This court has so decided. Postal Telegraph-Cable Co. v. Oregon Short Line R. R. Co., 23 Utah 474, 65 P. 735.

In this, this court has followed the unbroken current of authority and has kept to a sound principle. Boston Water Power Co. v. Boston and Worcester R. R., 23 Pick. 360; Overman S. M. Co. v. Carcoran, 15 Nev. 147; West River Bridge Co. v. Dix, 6 How. U.S. 507; Lewis on Eminent Domain, sec. 274.

Neither the city nor any other person can ever acquire a proprietary right in the corpus of the water of the lake or river. The right of the city is strictly usufructuary. "The corpus of the water is not vested even in the government." Kidd v. Laird, 15 Cal. 180.

No length of use can give the user a proprietary right in the corpus of the water of a public stream. City of Los Angeles v. Baldwin, 53 Cal. 469.

Why should not these two uses stand together, when the fact is, that there is no interference of the later with the earlier? They can be made mutually effectual, by simply making connection of the aqueduct with the canal without the slightest injury to the latter.

Section 6 of article 11 of the Constitution has no application. This is an inhibition on city and town governments against alienating waterworks, water rights and sources of water supply, which have been dedicated to the public use. It is probably, also, an interdiction against the power of the State Legislature to authorize a municipality to alienate such property. The Constitution can not, without a very strained construction, be extended so as to inhibit a secondary appropriation and use of waters which are publici juris under the statutes relating to appropriation of water.

Messrs. Bennett, Howat, Sutherland & Van Cott for respondent U.S. Mining Company.

Messrs. Rawlins, Thurman, Hurd & Wedgwood for respondent East Jordan Irrigation Company.

Messrs. Brown & Henderson, James H. Moyle, Esq., Messrs. Ferguson, Cannon & Tanner, Messrs. Wilson & Smith, Messrs. Stewart & Stewart, Daniel Harrington, Esq., and M. M. Warner, Esq., for other respondents.

BARTCH, J. MINER, C. J., concurs. BASKIN, J., dissenting.

OPINION

BARTCH, J.

--This action was brought to quiet title to the waters of the Jordan river, and the defendants and interveners are quite numerous. At the trial the court made findings of fact and of law, and entered a decree, inter alia, that the defendant Salt Lake City Water & Electrical Power Company is the owner of and entitled to the right to use all the waters of the river flowing in the channel at and above a point where the company's power plant is situated, and to convey such water to its power plant for use in operating the same, the water then to be returned to the stream and certain irrigating canals; and decreed to each of the other parties to the suit a certain portion of the water flowing in the stream, and appointed a commissioner at a certain monthly salary to superintend and direct the measurement and division of the water distributed by the decree in accordance therewith, to direct, supervise, and inspect all means and appliances for the diversion, conveyance, and use of the water, and to report to the court from time to time any violations of the provisions of the decree; the court retaining original jurisdiction of the case for the purpose of making all necessary orders and decrees to make effectual the rights awarded and preserved. The plaintiff Salt Lake City now challenges the correctness of the decree by this appeal.

It is insisted by the appellant that the court erred in decreeing as follows: "That the said city and canal and irrigation companies shall at all times allow to flow unimpeded down through the channel of said river a sufficient quantity of water, which, when added to the accretions to the river from seepage and other sources, will furnish at the various points of diversion and measurement the several quantities of water herein awarded to the West Jordan Milling & Mercantile Company, the Utah Mattress & Manufacturing Company, the United States Mining Company, William Cooper, Jr., and Bennion & Bennion for the operation of their several mills and factories; and during the irrigation season of each year shall allow to flow unimpeded through the channel of the river such additional quantity of water as will, when added to the accretions from seepage and other sources, supply, at the various points of diversion and measurement, the quantity of water herein awarded to the several farmers and landowners taking water for irrigation purposes through the Gardner mill race, the Galena canal, the Beckstead Irrigating Company's canal, the Mousley ditch, Bennion & Bennion mill race, and the Cooper mill race, as hereinbefore set forth; and during the winter, or non-irrigating season, four cubic feet of water for the use of the stockholders of the Beckstead Irrigating Company for domestic and culinary purposes. . . . That, subject to these limitations, and to the limitations and conditions contained in the agreement of compromise entered into in 1885 between Joseph H. Colladge and others and said city and canal and irrigation companies, the said city and canal and irrigation companies have the right at all times to shut off, impound, and store the entire flow of the Jordan river, and hold and save the same for future use, to the extent which, in their judgment, their interests may require." It is urged that this paragraph of the decree restricts the right of storage to the extent of making it subject at all times to the use of prior appropriators, and that under its provisions the quantity of water awarded to the prior appropriators must at all times be permitted to flow past the impounding dam, without regard to the necessities for impounding and storing the water, the impounding dam having been constructed about the year 1889. These provisions of the decree, it is claimed, are inconsistent with and unsupported by the findings of fact.

Upon careful examination of the findings in support of the part of the decree above quoted, we are not prepared to assent to the position here assumed. The appellant does not seem to recognize the force and effect to which the limitations contained in the last part of the above quotation are entitled. It is true that the court also found that in dry seasons the flow of the river became insufficient to supply the needs of the several appropriators and users; that in the year 1889 Salt Lake City and certain canal companies entered into an agreement by which they jointly dredged the bed of the river and removed natural obstructions therein, thereby becoming enabled to draw the water from Utah Lake through the channel of the river at a level...