Salt Lake City v. Telluride Power Co. (Hyrum Bennion, Interveners)

• Decision Date: 30 December 1932
• Docket Number: 4874
• Citation: Salt Lake City v. Telluride Power Co. (Hyrum Bennion, Interveners), 17 P.2d 281, 82 Utah 607 (Utah 1932)
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY et al. v. TELLURIDE POWER CO. et al. (HYRUM BENNION et al., Interveners)

17 P.2d 281

82 Utah 607

SALT LAKE CITY et al. v. TELLURIDE POWER CO. et al. (HYRUM BENNION et al., Interveners)

No. 4874

Supreme Court of Utah

December 30, 1932

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Suit by Salt Lake City and another against the Telluride Power Company, successor in interest to the Salt Lake City Water &amp Electrical Power Company, and others, wherein Hyrum Bennion and others intervened, and wherein, after decree determining the respective rights of the parties, the North Jordan Irrigation Company commenced supplementary proceedings for a construction of the decree. From the decree rendered, the Telluride Power Company and others appeal.

CAUSE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS IN ACCORDANCE WITH OPINION.

Stewart Alexander & Budge, of Salt Lake City, for appellants.

S. P Jones, W. A. Fraser, A. W. Watson, C. W. Morse, Van Cott, Riter & Farnsworth, and Ingebretsen, Ray & Rawlins, all of Salt Lake City, for respondents.

COX, District Judge. CHERRY, C. J., STRAUP and ELIAS HANSEN, JJ., and N. J. BATES, District Judge, concur. FOLLAND and EPHRAIM HANSON, JJ., being disqualified, did not participate.

OPINION

COX, District Judge.

This hearing comes before this court upon an appeal from a judgment rendered by the third judicial district court of Salt Lake county upon supplemental proceedings to recover money paid by the North Jordan Irrigation Company from the other parties to this action, for expenses of operating certain pumping plants at the orifice of Utah Lake, on the ground that the North Jordan Irrigation Company made excess payments under the decree in the above case made in 1901, and supplemental decree made in 1912.

This hearing involves the construction and interpretation of the decree of 1901, in which all the rights of the Jordan river were adjudicated, and of a supplemental decree in the same case made in 1912, in which the ownership of the parties litigant in a pumping plant installed at the orifice of Utah Lake, the right of the parties in the pumps, and the liabilities of each growing out of the ownership and use are determined.

Under the decree of 1901, the court retained jurisdiction of the subject-matter and of the parties for the purpose of all supplementary orders and decrees which may be required to make effectual the rights awarded by the decree, and the court also appointed a water commissioner.

Since 1901 it has been the practice of the president of the several canal companies and the city engineer representing Salt Lake City to meet and discuss matters of joint interest. An employee of the city engineer acted as secretary of this board, which was called the "board of canal presidents." The commissioner appointed by the court reported his doings to the board of canal presidents at intervals.

Since the supplemental decree of 1912, the commissioner and the secretary of the board attempted to apportion to the respective canals the expense of maintenance and operation of the pumps. The secretary undertook to collect the same. All pumps were operated after the 1912 supplemental decree during the years 1915, 1916, 1918, 1919, 1920, 1924, 1925, 1926, and 1927; during the years 1913, 1917, 1914, 1921, 1922, and 1923, gravity flow in the river supplied the water, without the operation of the pumps.

The North Jordan Irrigation Company contends that, during the years 1915, 1916, 1918, 1919, 1920, and 1924, the North Jordan Irrigation Company paid money in excess of the amount which it should have paid, or was required to pay under the terms of the decree of 1912, in the approximate amount of $ 6,287.97. For the purpose of recovering this money, and to have its rights under the decree construed, and the basis of distribution of pumping costs among the parties definitely determined, this matter was brought before the court upon a supplemental cross-complaint filed by the North Jordan Irrigation Company. After the other companies refused to reimburse the North Jordan Irrigation Company. After the other companies refused to reimburse the North Jordan Irrigation Company for the alleged excessive amounts paid by it, the North Jordan Irrigation Company has refused to pay any costs of pumping during the years 1925, 1926, and 1927, claiming the excessive amounts were proper offsets against the costs for these years.

Salt Lake City and other canal companies have filed joint counterclaims against the North Jordan Irrigation Company to recover moneys they advanced or paid in pumping plant expenses for the years 1925, 1926, and 1927, which they claim the North Jordan Irrigation Company owes by reason of its failure to make payment of its proportion during the years mentioned. The lower court found the issue against the North Jordan Irrigation Company, awarding judgment for $ 12,392.80 upon the counterclaims.

The appellant assigns twenty-five errors upon which it relies for reversal and modification of judgment. Boiled down, these assignments of error raise the following questions:

(1) The construction and interpretation of the decrees of 1901 and 1912.

(2) The running of the statute of limitations as a bar to the recovery of money sought by the North Jordan Irrigation Company.

(3) The right to set up a claim barred by the statute against a cross-complaint based upon a right of action arising after the barred action.

(4) The right of a party to claim an interest in water it has used in its canal and run over its ground, and which has passed off as a seepage and run-off water, under the decree referred to in this case.

(5) The right to claim the benefits of a purchased water right formerly used for power purposes for an irrigation purpose. Also to change the place of its use and the places of diversion.

Coming now to the first question, which will dispose of the alleged assignments of error Nos. 3, 5, 6, 16, 18, 21, 22, and 25, this calls for the interpretation of the decrees of 1901 and 1912 with special attention to the decree of 1912 as it relates particularly to the apportionment of costs of pumping water to the various canals, we call attention to the following paragraphs of the decree of 1912 and the findings of fact upon which this decree was based, which are the only parts of the findings and decree necessary to consider in the problem before us:

In subdivision (b) of the third paragraph of the findings of fact, upon which the above decree is based, the court finds:

"(b) And it has been mutually agreed by Salt Lake City, Utah & Salt Lake Canal Company, East Jordan Irrigation Company, South Jordan Canal Company, and North Jordan Irrigation Company, that the cost of maintenance and operation of said pumping plant, after April 10th, 1912, during any year in which said pumps are in operation, shall be borne by said city and said irrigation and canal companies, in proportion to the quantity of pumped water used by each of them during said year, except as hereinafter provided in the fifth conclusion of law and decree." (Italics ours.)

It is the contention of the North Jordan Irrigation Company that, in the apportionment of the costs of running the pumps, where they have been started at the request of three or more, the decree limits the duty to pay to the amount of pumped water actually used by each while the other parties litigant contend that after three require the use of the pumps, the costs are to be borne in proportion to the acre feet of water used by each, regardless of whether part of the water may come from seepage or run-off. To determine this question it is necessary to construe and interpret the decree of 1912, particularly that part above set out. In construing the decree it is proper to refer to the pleadings in the case and the issues joined thereunder, in order to explain and limit the language used in the decree. 34 C. J. 501-794; 1 Black on Judgments, 123; 1 Freeman on Judgments, 43. Referring to the record leading up to the supplemental decree of 1912, we find that one of the propositions submitted to the court in the 1912 proceedings is the following:

"The question of who shall control the starting of the pumps and the method of apportioning the costs and expenses of operating the same and distributing the water so that each party shall pay its equitable proportion of such expenses according to the benefits which each of said parties actually receive from the operation of the pumps."

We find in the abstract of the proceedings of 1912, pages 123 and 124, the following comment by court and counsel:

"Mr Stewart: Our position is this: That the canal companies, either of them, can have the pumps started, but if they start the pumps they must pay according to the quantity of water they receive in excess of the gravity flow.

"Mr. Dinniny: The City takes the same position as Mr. Stewart.

"The Court: The difference is that the City and the North Jordan take the position that the parties entitled to water should pay the expense of the operation of the power plant in proportion to the quantity of pumped water used. The South Jordan and the East Jordan and the Utah & Salt Lake take the position that the expense of pumping should be in proportion to the quantity of water received by the several parties, regardless of whether it is pumped water or water flowing by gravity.

"Mr Stewart: The position of the North Jordan is: Whenever any of the companies desire a flow of water greater than they get from the gravity flow, we concede to them the right to demand the pumps at once be operated. So long as the North Jordan receives no greater quantity than the gravity flow, they do not consent to the taxing against them of any of the expenses of the operation of the pumps, notwithstanding the...