Salt Lake City v. Gardner

• Decision Date: 01 February 1911
• Docket Number: 2135
• Citation: 39 Utah 30,114 P. 147
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY et al. v. GARDNER et al

114 P. 147

39 Utah 30

SALT LAKE CITY et al. v. GARDNER et al

No. 2135

Supreme Court of Utah

February 1, 1911

On application for Modification of Decree, March 18, 1911.

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by Salt Lake City and others against James A. Gardner and another.

Judgment for defendants. Plaintiffs appeal.

MODIFIED AND AFFIRMED.

Rawlins Ray & Rawlins, H. J. Dininny and P. J. Daly for appellants.

Thurman Wedgwood & Irvine for respondents.

FRICK C. J. McCARTY, J., concurring. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

This action was instituted pursuant to section 1288x14, Comp. Laws 1907, to determine the right of respondents to appropriate a specific quantity of water from Utah Lake. In September, 1905, pursuant to section 1288x6, respondents duly made and filed with the state engineer their application to appropriate forty cubic feet of water per second of time from said lake. Appellants, pursuant to section 1288x9, duly protested said application, which protest the state engineer overruled and allowed respondents' application, whereupon appellants brought this action to determine respondents' rights to appropriate any of the waters of said lake as aforesaid.

Utah Lake is a rather shallow body of water which varies in depth from a few inches near the shore line to thirteen feet at its deepest part. The water covers an area of about ninety-three thousand acres, or approximately one hundred and fifty square miles. The lake is the lowest part of a drainage basin comprising an area of about three thousand square miles. The sole outlet of the lake is Jordan River with its source in the extreme north end of the lake, and thence flows in a northerly direction emptying into the Great Salt Lake. In the year 1882, each one of the plaintiffs, as separate corporations, and each in its own right and behalf, constructed certain canals into which they diverted a certain quantity of the water flowing from the Jordan River or Utah Lake and devoted such to a useful and beneficial purpose. The combined capacity of the canals aforesaid amounted to a flow of eight hundred and twenty-eight cubic feet per second. In addition to the foregoing corporations, other parties had also appropriated certain quantities of water from said lake in the manner aforesaid, and whose rights were prior to appellants', amounting to a flow of about one hundred and seventy-six cubic feet per second. In diverting the water, and for the purpose of obtaining a more regular as well as a more continuous flow from the lake into the Jordan River at its source, appellants caused a certain dam to be constructed at the point where the water of the lake flowed into the Jordan River, and in that way impounded the water in the lake, and thus, in certain seasons of the year, caused the water to rise and stand at a higher level. In doing this, the water in the lake was caused to overflow some of the lower lands surrounding the lake, to which the landowners objected and insisted that the dam be removed or lowered. In 1885 a compromise was effected, and it was agreed between the water users and the landowners that the dam might be maintained at a certain height, which was fixed at three feet three and one-half inches above low-water mark, which point was designated "compromise point." This point is precisely three feet three and one-half inches above the bottom of Jordan River at the point where the water of the lake enters that stream.

It will thus be seen that, when the water in the lake rose so that it reached compromise point, the water users had to permit the water to flow into and through the Jordan River unmolested, and, when the water fell so that it was three feet three and one-half inches below compromise point, the water users could obtain no water by natural flow from the lake at the intakes of their canals, which were some distance north from the source of the Jordan River and along said stream.

In view of the foregoing conditions, the lake water flowed somewhat irregularly and in varying quantities into the Jordan River, and from that stream into the diverting canals of the plaintiffs. The varying quantities so flowing were determined by a series of measurements, from which the following results were obtained, namely: When the water in the lake stands at one foot above compromise point, the natural flow from the lake into the river is eight hundred cubic feet per second; when the water is only six inches above that point, the flow is six hundred and twenty-five feet per second; when the water stands at compromise point, the flow is reduced to five hundred and five feet per second; when it is six inches below that point, the flow is four hundred and ten feet per second, and at two feet below it is one hundred and eighty-seven feet per second, while at three feet below the flow is but eighty-two and a fraction cubic feet per second. As a matter of course, when the water fell below the bottom of the Jordan River there was no natural flow at all. For the purpose of overcoming the difficulty arising from the foregoing variation in the flow, and to obtain a regular flow of water from the lake into their diverting canals, plaintiffs, in 1902, installed a pumping plant at the point where the lake empties into the Jordan River, to which plant they have added from time to time after 1902 so that when this case was tried appellants had seven pumps installed with a combined theoretical pumping capacity of seven hundred cubic feet per second.

From various measurements that were made, it was also made to appear from the record that from 1887 to 1900 the water fluctuated in Utah Lake from being eleven inches above compromise point, the highest point reached, in June, 1893, to three feet one inch below that point, the lowest, in October, 1900. During the term of years aforesaid there were only four years when the water rose above compromise point, namely, 1893, 1894, 1896, and 1897; and two years, to-wit, 1890 and 1899, when the water reached, but did not go above, compromise point; while in all the years it fell below that point during a large portion of each year. The average of all the measurements, as near as we can obtain it from the record, that the water fell below compromise point each year during the years aforesaid, was probably about eleven inches; while the average of all the measurements that the water rose above that point was about five inches. The water, however, was above compromise point but a short time in each year. In one year it was above that point for about sixty days; while in the other years the time did not exceed thirty days, which was during the high-water season.

It is important to bear in mind that from the foregoing measurements, which are not disputed by any one, there was no time, so far as the record shows, when the natural state of the water in Utah Lake was such as would permit a natural flow into Jordan River and from thence into the diverting ditches of appellants of the quantity of water claimed by them, namely, eight hundred and twenty-eight cubic feet per second. The highest amount that would thus flow was during parts of the months of June and July, 1893, and May, 1897, at which times, however, less than eight hundred second feet would flow into the Jordan River. During two other months the flow of water was slightly in excess of six hundred feet, and during eleven months more the flow was between five hundred and six hundred feet, while during all the remainder of the time between December, 1887, and December, 1900, covering the whole period of the measurements, the flow was less than five hundred cubic feet per second into the Jordan River from the lake. Moreover taking the period from 1893 to 1906, during which time an attempt was made to show the quantity of water that appellants diverted from their ditches and actually applied to a useful and beneficial purpose, the clear weight of the evidence is to the effect that appellants did not at any time take or use water in the amount allowed them in the decree by the trial court. In referring to the findings, it is manifest that the court allowed appellants all that the evidence showed that they were entitled to. Indeed, in the tenth finding which is excepted to, the court among other things found "that the aggregate number of acres which have been brought under irrigation by the plaintiffs (appellants) other than Salt Lake City is forty-nine thousand acres, and the maximum contemplated interests of the plaintiff (appellant) Salt Lake City will be fully satisfied by a quantity of water equal to thirty-six thousand acre feet supply during the irrigating season as heretofore defined at the head of said plaintiff's canal. . . . That thirty-six thousand (36,000) acre feet, measured at the headgates of its canal, and used in such volume as from time to time may be necessary through the irrigation season, is a sufficient quantity of water to satisfy all the needs and necessities of the plaintiff, Salt Lake City. That one hundred and eighty-five thousand (185,000) acre feet, measured at the headgates of their canals, is a sufficient quantity of water, when used at such times and in such quantities as their necessities require, to satisfy the needs and necessities of the plaintiffs in this action for irrigation, municipal, culinary, and all domestic purposes; the same being an equivalent of a continuous flow of approximately five hundred and fifteen (515) cubic feet of water per second during the irrigation season of one hundred and eighty days." The court also found that the highest amount of water that appellants took from the lake in any one year by means of their pumps and otherwise was in the year 1905, which...