Scott Elliot v. Whitmore

• Decision Date: 01 September 1892
• Citation: 24 P. 673,8 Utah 253
• Court: Utah Supreme Court
• Parties: LEWIS A. SCOTT ELLIOT, APPELLANT, v. GEORGE C. WHITMORE AND ANOTHER, RESPONDENTS

24 P. 673

8 Utah 253

LEWIS A. SCOTT ELLIOT, APPELLANT, v. GEORGE C. WHITMORE AND ANOTHER, RESPONDENTS

Supreme Court of Utah

September 1, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Case remanded.

Mr Charles S. Varian, for the appellant.

Messrs Hoge and Burmester, for the respondent.

BLACKBURN J., MINER, J. ZANE, C. J., and ANDERSON, J., and BLACKBURN J., concurred.

OPINION

BLACKBURN, J.

This is a suit brought to determine the water-rights in Grassy Trail Creek or Cottonwood, in Emery county, The only question of law involved in the case is the date of the appropriation of water made on the unsurveyed lands of the government. We think that where a person settles on the public domain unsurveyed, with the intention of acquiring title so soon as he can under the law, and does acquire title, and afterwards appropriates water for its cultivation, such appropriation is effective from its date, although it may be several years before he succeeds in perfecting his title. An examination of the evidence in this case clearly shows that it is impossible to determine the rights of the parties, for it is too indefinite and uncertain. Litigants in reference to water-rights should present such evidence to the court in every case as will justify as definite decree. Because of uncertainty in this case the complaint was dismissed, and properly. But as it may become important at some future time to reinvestigate their water-rights, the decree of this court is that the complaint be dismissed without prejudice. And it is the opinion of this court that the findings of fact by the court below are not supported by the evidence, and they and therefore set aside and held for naught.

ZANE, C. J., and ANDERSON, J., concurred.

Thereupon a rehearing was granted and the following opinion was delivered:

MINER J.:

This suit in equity was brought by the plaintiff to determine the right to the water of Grassy Trail Creek, sometimes called "Cottonwood Creek," in Emery county. A decree was entered in the court below in favor of the defendants, and the complaint was dismissed. From the judgment and order denying his motion for a new trial the plaintiff appeals to this court, where a hearing of the appeal was had, and the complaint ordered dismissed without prejudice, and the findings of fact were set aside. A rehearing...