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

• Decision Date: 14 June 1918
• Docket Number: 3081
• Parties: SALT LAKE CITY et al. v. SALT LAKE CITY WATER & ELECTRICAL POWER CO. et al. (BENNION et al., Interveners)
• Court: Utah Supreme Court

174 P. 1134

54 Utah 10

SALT LAKE CITY et al. v. SALT LAKE CITY WATER & ELECTRICAL POWER CO. et al. (BENNION et al., Interveners)

No. 3081

Supreme Court of Utah

June 14, 1918

On Application for Rehearing September 17, 1918.

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

Action by Salt Lake City and another against the Salt Lake City Water & Electrical Power Company and others.

From a judgment in favor of the plaintiff the Utah & Salt Lake Canal Company and against the defendant the South Jordan Canal Company, the latter appeals.

REVERSED and REMANDED, with directions to dismiss.

Stewart Stewart & Alexander of Salt Lake City, for appellant.

Thurman Wedgwood & Irvine of Salt Lake City, for respondent.

FRICK, C. J. McCARTY, CORFMAN, and GIDEON, JJ., and STEPHENS, District Judge, concur.

OPINION

FRICK, C. J.

This case was before this court in another form, as appears from the decisions reported in 24 Utah 249, 67 P. 672, 61 L. R. A. 648, reaffirmed in 25 Utah 456, 71 P. 1069; and again in 43 Utah 591, 137 P. 638. In those decisions, however, the questions respecting the rights to the use of water and matters incidental thereto were involved and adjudicated, while in this proceeding, which is merely incidental to all of the former proceedings, the question of the apportionment of the cost and expense of pumping water from Utah Lake, which water is distributed among all of the irrigating canals owned by the respective parties to the action in the proportions fixed in the former decisions, is involved.

As appears from the former decisions the district court retains perpetual "original jurisdiction in this case and the subject-matter thereof and of the parties thereto * * * for the purpose of all necessary supplemental orders and decrees which may be required to make effectual the rights awarded and preserved by this decree." The present proceeding was therefore commenced by the Utah & Salt Lake Canal Company, hereinafter called the applicant, against Salt Lake City and the others named in the caption, to compel them to contribute a portion of the costs and expenses of pumping water from Utah Lake for the irrigation season of 1914. This proceeding was, however, not commenced as an independent action, but was commenced merely to enforce certain provisions of the original decree, and hence the title of the original action was retained.

In the original decree, after determining the respective rights of the parties to the use of water, and after adjusting their respective rights to the pumping plant which is part of the irrigation system owned by the respective parties, the court also determined when, under what circumstances, and to what extent each party should contribute to the cost and expense of pumping water from Utah Lake into the canals of the respective parties when the flow by the force of gravity no longer is sufficient to supply the amount of water required by the respective parties. With respect to the matter just stated, the decree here in question reads as follows:

"That any and all of said pumps may be started at any time during the irrigation season upon the request of three or more of the above-named parties, to-wit, Salt Lake City, Utah & Salt Lake Canal Company, East Jordan Irrigation Company, South Jordan Canal Company, and North Jordan Irrigation Company, and when so started each of said parties shall pay the cost of pumping the water used by it during that year (except as provided in the next following paragraph) in proportion to the number of acre feet used by each of said parties respectively.

"If three of said parties shall fail to agree upon the time for the starting of said pumps, they may be started at any time during the irrigation season at the request of either or any of said above-named parties, namely, said city and said irrigation and canal companies; provided, however, that in such event the party or parties so requesting the starting of said pumps and such of said parties as use water in excess of their portion, as defined in the original decree herein, of what the natural gravity flow from Utah Lake into the Jordan river would be at that time, if said pumps were not in operation, shall pay the additional cost and damages, if any, caused by the operation of the said plant in pumping the water, in proportion to the acre feet of water used by them, until such times as three of said parties shall each be using water in excess of its portion, as defined in said decree, of what the gravity flow would be at that time, if said pumps were not in operation, from which time all of said irrigation and canal companies and said city shall pay for the operation and maintenance of said pumps in proportion to the number of acre feet used by each. The gravity flow herein referred to is the proportion of water which each of said parties would be entitled, under the original decree herein, to receive if said pumping plant were not in operation."

At the hearing in the court below the proceeding was dismissed, at the request of the applicant, as against all of the parties except the South Jordan Canal Company, hereinafter styled appellant.

The court found that the amount appellant should contribute to defray the cost of pumping water for the year 1914 was $ 1,015.65 and entered judgment accordingly. The appeal is from that judgment.

The facts upon which the judgment is based are not in dispute. The undisputed facts are that in 1914 the pumps were started at the sole request of the appellant, the appellant and the other canal companies expressly refusing to consent to the starting of the pumps for the reason, as they alleged, that they received sufficient water from Utah Lake by the natural or gravity flow to supply their needs. As will appear from the former decision, one J. Fewson Smith was appointed commissioner, and he has for many years acted as such to distribute the water and to enforce the provisions of the decree and orders of the court. In 1914, in response to an inquiry of the city engineer of Salt Lake City, the commissioner wrote as follows:

"Sept. 29, 1914.

"Mr. Sylvester Q. Cannon, City Engineer, City--Dear Sir: Referring to your letter of September 19, 1914. Since the pumps were started this season all water from Utah Lake has been distributed in such a way that none of the canals except the Utah and Salt Lake has received more than they would have been entitled to had there been no interruption of the gravity flow. Therefore the understanding of yourself and other canal presidents with regard to the distribution of the pump water this season is correct, as expressed in the letter referred to."

While the foregoing statement was not literally true in so far as the whole of the 1914 season was concerned, yet it was literally true that no water in excess of the gravity flow was ever asked for by any of the water users except the applicant, and what little of the pumped water did flow into the canals of the other users was merely incidental, and hence has no bearing upon what the decision in this proceeding should be.

The appellant in 1914 did, however, use more water in its canal than it was entitled to from the gravity flow. It, however, did not obtain such excess from the water that was pumped by the applicant from Utah Lake in response to any demand made by the appellant for water.

The facts respecting the excess water used by appellant for the year 1914, the only year in question here, are as follows: The appellant applied to Salt Lake City for permission to use a certain quantity of water to which said city was entitled, but was not using, during the whole or a portion of the irrigation season of 1914. Pursuant to said application, the city engineer wrote the following letter to the water commissioner, whose duty it was to distribute the water among the several users, to wit:

"July 15, 1914.

"Mr. J. Fewson Smith, Commissioner, Salt Lake City, Utah--Dear Sir: You are hereby authorized and instructed to deliver to the South Jordan Canal Company sixty (60) second feet of water, or any part thereof, belonging to the Jordan and Salt Lake City Canal, that may be desired by them, during the remainder of this irrigation season, unless otherwise notified by me."

The commissioner distributed sixty second feet of water belonging to Salt Lake City to the appellant. Salt Lake City, during all of the time that said water was distributed to appellant was entitled to said 60 second feet of water as part of the gravity flow, and hence no part of the sixty second feet appellant received from Salt Lake City, and no part of the water that was distributed to it through its canal for the year 1914, was pumped water within the purview of the decree as we construe it. It is manifest, however, that if Salt Lake City had not authorized appellant to divert the sixty second feet of water into appellant's canal appellant would have been compelled to make application for and use sixty second feet of pumped water. It is, however, equally manifest that if Salt Lake City had used the sixty second feet of water for any purpose the applicant would have been required to pump precisely the same quantity of water during the season of 1914 it in fact did pump, and in such event it could not have called on Salt Lake City, nor on any of the other owners of canals, to contribute to the cost and expenses of pumping water unless one or more of the others had used water in excess of the gravity flow. Applicant's counsel, however, most earnestly contend that, in view that the appellant during the irrigation season of 1914 did use water in excess of the amount it would have received from the gravity flow, it should contribute to the cost and expense of...