Sigurd City v. State

• Decision Date: 19 October 1943
• Docket Number: 6303
• Citation: 105 Utah 278,142 P.2d 154
• Court: Utah Supreme Court
• Parties: SIGURD CITY v. STATE et al

142 P.2d 154

105 Utah 278

SIGURD CITY v. STATE et al

No. 6303

Supreme Court of Utah

October 19, 1943

Appeal from District Court, Sixth District, Sevier County; Lewis Jones, Judge.

Proceeding by Sigurd City, a municipal corporation, against the State of Utah and others to condemn whatever rights defendants had in waters which were being diverted by plaintiff at the head of Rosses Creek. From a judgment for defendants, plaintiff appeals.

Reversed with instruction.

William A. Hilton, of Salt Lake City, for appellant.

Grover A. Giles, Atty. Gen., S.D. Huffaker, Asst. Atty. Gen., E. J Skeen, of Salt Lake City, and N. J. Bates and T. A. Hunt both of Richfield, for respondents.

WADE Justice. WOLFE, C. J., and McDONOUGH, J., concur. LARSON, Justice, MOFFAT, Justice, concurring in part and dissenting in part.

OPINION

WADE, Justice.

The town of Sigurd determined to obtain a supply of water for culinary and domestic uses. About 7 1/2 miles southeast of Sigurd at the head of a canyon known as Rosses Creek Canyon there arise springs. It is the water from these springs which Sigurd decided would be the most suitable and practicable for its purposes. The waters from these springs flowed into Rosses Creek, and Rosses Creek is a natural tributary of a stream of water which runs through Kings Meadow Canyon, and is known by the name of either Kings Meadow Creek or Petersons Creek. In this canyon are located two ranches, one is known as the Nebeker Ranch and the other is known by the names of Bastion, Peterson, or State Ranch. Hereafter we shall call the latter ranch the Peterson Ranch, and the Kings Meadow Creek the Peterson Creek. On the Peterson Ranch are located numerous springs and flowing wells whose waters flow into Peterson Creek and thence to the Nebeker Ranch which is lower than the Peterson Ranch. During summer these two ranches used all the waters in Peterson Creek for irrigation purposes.

On June 6th, 1938, Sigurd City filed with the State Engineer of Utah an application to appropriate for domestic and culinary purposes. 5 C. F. S. of water from the Rosses Creek Springs. Thereafter it constructed a pipeline and a system for the distribution of the waters to its inhabitants running from these springs to Sigurd City.

The State Land Board of Utah and George W. Nebeker claimed ownership of the waters sought to be appropriated by Sigurd and protested to the State Engineer the granting of this application. The State Engineer found these waters were unappropriated from October 16 to June 15 of the succeeding year, which period of time covers the nonirrigation season, but were appropriated waters in the remaining months, and thereupon approved Sigurd's application, subject, however, to prior rights for the period commencing October 16 to June 15 of the succeeding year.

On June 15, 1939, Sigurd City commenced proceedings in the District Court against the State of Utah, George W. Nebeker and Emily Nebeker, his wife, to condemn whatever rights they had in the waters which were being diverted by Sigurd City at the head of Rosses Creek.

Sigurd City did not concede that the defendants owned any interest in the waters which it had taken. There was therefore injected in the case the question of title as well as the questions of value of the waters sought to be condemned and the damages sustained by the defendants. It was stipulated that the court should try the question of title and a jury the questions of value and damages, if any, should the court find title to be in the defendants. It was also stipulated that the jury should listen to all the evidence in the case but should, upon instruction from the court, decide only the questions of value and damages.

The evidence disclosed that George W. Nebeker was the assignee of a contract of sale from the State Land Board of the land and the appurtenant water rights of the Peterson Ranch.

Nebeker claimed all the waters in the Kings Meadow Canyon by virtue of continuous beneficial user for irrigation, domestic and culinary purposes, by himself and his predecessors in interest for a period extending over 50 years.

The State of Utah claimed the right to the use of waters in Kings Meadow Canyon by virtue of the decree in the Richland Irrigations Co. v. West View Irrigation Co., case No. 834, in the Fifth Judicial District of Utah, wherein certain amounts of water in Peterson Creek were decreed to the owner of the Peterson Ranch.

Sigurd conceded the claims of the defendants to the waters in Kings Meadow Canyon, but contended that the waters which it diverted were not part of the waters which flowed into Kings Meadow Canyon. Its contention was that the waters which it diverted on Rosses Springs never reached the ranches of the defendants and therefore did not belong to them. In its complaint Sigurd City admitted that the natural channel of the Rosses Creek united with the natural channel of Petersons Creek, but contended that during the major portion of time there is not sufficient water in Rosses Creek to reach the bed of Petersons Creek.

There was evidence to the effect that Rosses Creek stream was not large, but that its waters did unite with the waters of Petersons Creek, where it commingled with other tributaries of Petersons Creek and flowed down to the Peterson Ranch. There was also evidence that the amount of surface waters varied with the seasons. During hot, dry months the surface flow would disappear during the heat of the day and reappear sometime during the night or the early morning hours when the temperature had become cooler.

Both Sigurd City and defendants produced experts to testify to the topography and geological condition of the surrounding terrain. As is usually the case in expert testimony, these experts disagreed as to the conclusions to be drawn from certain physical phenomena. Suffice it to say that the expert for the defendants was of the opinion that the physical aspects of the canyons and the streams indicated a subsurface stream because, as he said, as Rosses Creek the "unconsolidated rock is deep and wide and large quantities of water go through it. He accounted for the fact that the waters seemed to appear and disappear at intervals in Rosses Creek as being due to the fact that the subsurface flow was forced to the surface when the valley fill became narrower. A further fact from which this expert drew his conclusion that the waters of Rosses Creek flowed in a subsurface channel was the presence of willows and rabbit brush at the bottom of Rosses Creek Canyon, since this kind of vegetation grows only where there is a comparatively high water table. From these physical facts he drew the conclusion that very little water would be lost enroute from Rosses Springs to the springs and wells on Peterson Ranch although some, of course, would be lost by transpiration and evaporation. It followed therefore, from his reasoning, that when Sigurd diverted the water at Rosses Springs the flow to the Peterson Ranch would be reduced by the amount taken.

With this conclusion an expert hydrologist testifying for Sigurd disagreed. It was the opinion of the hydrologist that due to the fact that the bed of Rosses Creek was porous the water sank but did not become part of the subsurface flow and therefore very little, if any, of the water of Rosses Springs ever reached Peterson Ranch.

The trial court found that the defendants were the owners of the two ranches located in Kings Meadow Canyon together with all of the waters used in connection with said lands. It further found that the waters of Rosses Creek including the seeps and springs sought to be condemned, are tributary of and flow into Petersons Creek which creek is a tributary of and flows into Kings Meadow Creek. That at Kings Meadow Creek the defendants and their predecessors in interest have diverted and beneficially used, during certain seasons of each year for more than fifty years, all of the waters flowing in that creek, including the waters which came from Rosses Creek and Petersons Creek, whether flowing above or underneath the surface of the ground. The foregoing facts are the basis of defendants' water rights and there is no substantial dispute thereon and therefore they cannot be reversed. But the court in its findings of fact as well as in its conclusions of law and decree concluded from those facts that the defendants were the owners of all of the waters taken by plaintiff into its pipelines at Rosses Creek. Such conclusions, even though stated as findings of fact, are really conclusions of law, and to the extent that they are in conflict with the views herein expressed are not supported by the facts and are therefore set aside.

The court instructed the jury on this subject that the quantity of water "actually taken from defendants * * * must be fixed either at .19 or .24 of a cubic second foot or at some amount in between those two figures." In addition thereto the court submitted a special interrogatory on this subject which, with the Jury's answer is as follows:

"How much water in quantity was actually taken into plaintiff's pipeline as of June 15, 1939? (This must be either at .19 or .24 of a cubic second foot or at some amount in between those two figures.) Answer: .24."

As pointed out above there was a sharp conflict in the evidence as to how much, if any, of the waters of Rosses Creek which was taken by plaintiff into its pipelines would be lost by seepage and evaporation and would therefore never reach the defendants' ranches at Kings Meadow, had it not been taken by the plaintiff. The court made no written finding of fact on this question, and did not submit it to the jury. But at the trial after all the evidence was in, in the presence of counsel, the court dictated into...