Salt Lake City v. Colladge

• Decision Date: 01 July 1896
• Docket Number: 699
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY ET AL., APPELLANTS, v. JOSEPH H. COLLADGE ET AL., RESPONDENTS

45 P. 891

13 Utah 522

SALT LAKE CITY ET AL., APPELLANTS, v. JOSEPH H. COLLADGE ET AL., RESPONDENTS

No. 699

Supreme Court of Utah

July 1, 1896

Appeal from the district court of the First judicial district Territory of Utah. Hon. W. H. King, Judge.

Action by Salt Lake City et al. against Joseph Colladge et al. to establish the right of plaintiffs to maintain the waters of Utah Lake at certain levels, and to restrain defendants from bringing action against plaintiffs for damage done to lands flooded on the shores of Utah Lake.

Reversed and remanded.

Richards & Richards and William McKay, for appellants.

The decree does not conform to the facts found, and the evidence is insufficient to support it. This court has the right to make the decree conform to the findings of fact, and should render such a decree as the court below ought to have rendered. Wickliffe v. Owings, 17 Howard 47-53; Elizabeth v. Am. N. Pavement Co., 97 U.S. 646; Persse v. Cole, 1 Cal. 369; Gahan v Neville, 2 Cal. 81; Union Water Co. v. Murphy's Co., 22 Cal. 620; Atherton v. Fowler, 46 Cal 320; Love v. Schaitzer, 31 Cal. 489.

The construction we contend for is in harmony with the practical construction which has been adopted by the parties themselves, and should control. District of Columbia v. Gallaher, 124 U.S. 505; Chicago v. Sheldon, 9 Wall. 50; Steinbach v. Stewart, 11 Wall. 566.

Evans & Rogers, Saxey & Edwards, Thurman & Wedgwood, DeMoisey & Kenward, D. D. Hautz and R. Anderson, for respondents.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This controversy arose over certain dams which the plaintiffs erected and maintained in the Jordan river, near its source, at Utah Lake, for the purpose of irrigation. The action was brought to establish the low-water mark in the lake, referred to in a certain contract between the plaintiffs and defendants, made in 1885, to determine the plaintiffs' rights to maintain their dams, and to have the defendants restrained from interfering with them, and from commencing or prosecuting any suits at law against the plaintiffs on any claim that they had wrongfully raised the water in said lake, or flooded the defendants' lands, or caused any injury or damage thereto by said means. It appears that, during the pendency of the suit, the parties thereto entered into stipulations as to a number of the issues raised in the pleadings; and, respecting those issues, the decree of the court was entered in conformity with the stipulations, and the appeal was taken only from that portion of the decree which relates to the issues tried and decided by the court.

But two questions are presented for our consideration. By virtue of the contract above referred to, the plaintiffs acquired the right to erect and permanently maintain a dam in the Jordan river, at a certain height specified, for the purpose of storing the water in the lake. The construction of the dam was to be such that, by placing planks or other obstructions into the waterway, the water in the lake could be raised, or by removing them, could be lowered. For the purpose of carrying the agreement into effect, provision was made for the appointment of a commission, who were constituted the agents of both parties to the contract, and among other things, were empowered to determine and direct when and to what extent obstructions might be placed into the waterway of the dam, not to exceed the highest elevation specified in the contract. It was also agreed that the plaintiffs should have the right to dredge the bottom of the river and cut through a certain bar in the lake, at the head of the river, so as to permit a more rapid flow, and to secure to themselves a more reliable supply of water by being enabled to draw it from a lower level in the lake, provided a dam were put at a suitable place in the river or at the bar, the lake to be used and maintained as a reservoir. Under this contract and the evidence, the court decreed, among other things, that the plaintiffs had the right to maintain obstructions in a certain dam, to the height of 14 inches above the floor of the dam, and the first question to be determined is whether the court erred in its decree on this point.

It appears that the first dam was constructed by Salt Lake county, near the boundary line between Salt Lake and Utah counties, to divert water from the river for the purpose of irrigation. All the plaintiffs became interested therein, and afterwards, in pursuance of the contract, a bar in the river known as the "New Bar," was cut though and dredged, the channel of the river lowered, and a new dam built about a mile below the new bar, but above the old dam, for the purpose of holding the water in the lake at the same level as it was before the new bar was removed, the removal of which was effected, and the dam built, to enable the plaintiffs to draw the water, when necessary, from a lower level in the lake; and the height at which the permanent obstruction may be maintained by the plaintiffs in the new dam, with-out interference by the omission or any of the defendants, is the exact point now under consideration. The appellants contend that the evidence does not justify the findings of facts on this question, or that portion of the decree entered thereon which determines the elevation which the plaintiffs have a right to maintain the new dam, and the number of inches in depth of the new bar and other obstructions they had removed above the new dam, and permanently lowered the bed of the river. The finding in question is as follows: "That the plaintiffs in the years 1888, 1889, and 1890, removed bars and other obstructions which naturally existed in the bed of the Jordan river at the new dam, and at the point known as 'New Bar,' in the neighborhood of one mile above the new dam erected by said plaintiffs in said river, and in such removal, removed permanent natural obstructions then in said river above said dam, and permanently lowered the bed thereof fourteen inches, thus increasing the capacity of said river, and thereby enabling said plaintiffs to utilize fourteen inches more in depth of the water of said lake, over the entire surface thereof, in seasons of low water; that said plaintiffs, by reason of the removal of said bars and other obstructions, to the depth aforesaid, are entitled to at all times keep and maintain planks or other obstructions on the floor or sill of the new dam erected by them, to the height of fourteen inches above the floor or sill of said dam, and no more; and the court finds that said planks, to the height of fourteen inches above the floor of the new dam, are no more or greater obstruction to the flow of the water in said river than were said bars and other natural obstructions before their removal, as aforesaid. The floor of said new dam is found to be six inches lower that the top of the sill of the old dam, as fixed by said...