Spanish Fork City v. Hopper

• Decision Date: 01 April 1891
• Citation: 7 Utah 235,26 P. 293
• Court: Utah Supreme Court
• Parties: SPANISH FORK CITY, AND OTHERS, RESPONDENTS, v. ZACHARIAH HOPPER, AND OTHERS, APPELLANTS

26 P. 293

7 Utah 235

SPANISH FORK CITY, AND OTHERS, RESPONDENTS, v. ZACHARIAH HOPPER, AND OTHERS, APPELLANTS

Supreme Court of Utah

April 1, 1891

APPEAL from a judgment of the district court of the first district and from an order overruling a motion for a new trial. The opinion states the facts, except that the demurrer was on three grounds; incapacity of the plaintiff, Spanish Fork City, to sue; ambiguity and uncertainty in the complaint, and that the complaint did not state facts sufficient to constitute a cause of action.

Judgment and decree affirmed.

Messrs Booth, Wilson and Wilson, for the appellants.

Mr George Sutherland, Messrs. Thurman and King, and Mr. A Saxey, for the respondents.

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

OPINION

MINER, J.:

This action was commenced by the plaintiffs against the defendants in the first district court at Provo, June 4, 1889, to prevent and restrain the defendants from taking, diverting, or obstructing any of the waters of the Spanish Fork river or its tributaries in Utah county; plaintiffs claiming to be joint owners by prior appropriation and use of the waters of said river for irrigation and domestic purposes. The several separate answers of the defendants were filed June 15, 1889, and a joint demurrer filed May 9, 1890, was overruled May 12, 1890, and the court proceeded to try the case without a jury, at the close of which trial a decree was entered for the plaintiffs. The defendants appeal. The defendants assign the following errors of law and fact: "First. The third finding is unsustained, for the reason that no proof of transfer of water-right from prior appropriators to the plaintiffs was before the court. (1) The court erred in overruling the demurrer of defendants to the complaint herein. (2) The court erred in finding for the plaintiffs in this: that no special damages to the plaintiffs was alleged or proven. (3) The court erred in finding for the plaintiffs in this: that the decision is not the legal result of the evidence, and that it is against the law, for the reason that the defendants have held open, peaceable, uninterrupted, and continuous use of the waters in dispute for the period of seven years. (4) The court erred in distributing by its decree water to a party not a party of the action, namely, the South-East Irrigation Company. (5) The court erred in making a decree where all the parties in interest were not before the court in this: that the Lake Shore Canal Company, and the East Bench Canal Company were not represented in the action. (6) The Lake Shore Canal Company and the East Bench Canal Company were not before the court."

We have not been favored with the defendants' brief, but from the record we conclude that as to the first assignment of error the evidence tends to show that the original appropriators of the water organized themselves into the various irrigation companies, who were plaintiffs in this case, and thereafter received their water through the companies. Soon after the irrigation companies were organized they took charge of the water, and distributed it upon the lands of their stockholders and others, who were the original appropriators. There was also proof that the transfer of the water-rights had been made by the appropriators to some of the irrigating companies. If the transfer of water-rights was not strictly formal it was not a matter which the defendants could take advantage of. The testimony tends to show that the plaintiffs and their predecessors in interest had appropriated all the waters which were awarded to them...