Spring Creek Irr. Co. v. Zollinger

• Decision Date: 12 April 1921
• Docket Number: 3569
• Citation: 58 Utah 90,197 P. 737
• Court: Utah Supreme Court
• Parties: SPRING CREEK IRR. CO. v. ZOLLINGER et al

197 P. 737

58 Utah 90

SPRING CREEK IRR. CO. v. ZOLLINGER et al

No. 3569

Supreme Court of Utah

April 12, 1921

Appeal from District Court, First District, Cache County; J. D Call, Judge.

Action by the Spring Creek Irrigation Company against Jacob Zollinger and others. Judgment for defendants, and plaintiff appeals.

REVERSED AND REMANDED, with instructions.

L. E Nelson, and W. W. Maughan, both of Logan, for appellant.

Walters & Harris, of Logan, for respondents.

THURMAN J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an action to quiet title to the waters of Clear creek, in Cache county, Utah. No controversy arises in respect to the pleadings; nor is it necessary to even state the substance of the pleadings, except to say that both plaintiff and defendants claim title to the waters of the creek, not only by prior appropriation, but by adverse user as well.

Clear creek is a tributary of Blacksmith Fork river, in Cache county, and is formed by springs rising in the valley. It is quite uniform and constant in flow during the irrigation season as compared with streams having their source in the mountains.

Plaintiff claims to be the owner of the right to use for beneficial purposes all of the waters of Blacksmith Fork river and its tributaries, including Clear creek, to the extent of 30 cubic feet per second, but none of said waters, except those of Clear creek, are involved in this litigation.

Plaintiff's predecessors in interest made the appropriation under which plaintiff now claims in 1879 by the erection of a dam across the Blacksmith Fork river, below its junction with Clear creek, and the construction of a canal leading therefrom to the vicinity of the lands to be irrigated thereby. Later on, in 1902, plaintiff changed its place of diversion of said waters to a point above the junction of the river with Clear creek by the construction of a dam in the river and a canal leading therefrom, which said canal crossed said Clear creek in such manner as to intercept the waters thereof. The canal thus constructed, after crossing Clear creek, formed a junction with the canal constructed in 1879.

Defendants' appropriations of the waters of Clear creek, in part date back to some time between 1878 and 1880; the exact date being the subject of dispute. The appropriations were made by means of dams placed in the creek and ditches leading therefrom. Both plaintiff and defendants, and their predecessors in interest, have used the waters so diverted by them for the irrigation of their lands, and for other beneficial purposes, ever since the first diversion thereof, as above set forth. Both parties increased their area of irrigated lands during the first few years after their irrigation began, but it does not appear that the quantity of water originally diverted was materially increased. It required less water to irrigate the same quantity of land as time passed on. Such seems to have been the common experience of practically every community where irrigation is carried in on the arid region.

The trial court made elaborate findings of fact and concluded therefrom that the defendants are the owners of the right to the beneficial use of all the waters of Clear creek at points of diversion of their several ditches, as appurtenant to their lands, and that the plaintiff is the owner of the right to the beneficial use of all the waters arising and flowing in the channel below; in other words, plaintiff's right, as found by the court, seems to be in the nature of a secondary right, although not so denominated in the findings.

Judgment was entered in accordance with the conclusions of the court, from which judgment plaintiff appeals, and presents for our consideration numerous assignments of error.

On motion of appellant, seasonably made, appellant was permitted to amend its original assignments of error as to all assignments relating to the insufficiency of the evidence.

After a careful examination of the record, including a review of all the evidence appearing in the transcript and the briefs of counsel filed in the case, we regret we are unable to make a final disposition of the case, either by affirming the judgment of the trial court or entering findings and judgment of our own.

The findings are indefinite concerning the most vital issue presented by the pleadings. The main question to be determined by the trial court was the question of priority of right to the use of the water. In finding No. 3 the court found that plaintiff's predecessors in interest constructed a dam in Blacksmith Fork river and began the construction of a canal leading therefrom to their lands in 1879. As to the exact time in 1879 when the work was commenced the findings are silent, although, as will appear later on, the exact time, as near as practicable, was of the very essence of the case.

In finding No. 11 the court, in dealing with the appropriations made by defendants, informs us that in 1878 one Milton D. Hammond appropriated water from Blacksmith Fork river for the irrigation of his lands by means of a ditch, and that said ditch, as a means of irrigation, proved to be impracticable, so that in 1879 he commenced the construction of ditches from Clear creek for the irrigation of the same lands. Again, the findings are silent as to the time in 1879 when Hammond commenced the construction of these ditches. There is nothing in the findings to indicate that an appropriation of water from Clear creek in 1879 should relate back to an abortive attempt to appropriate water from Blacksmith Fork river in 1878. Hence, as far as these findings are concerned, it does not appear which of the parties litigant first commenced the construction of their diverting works so as to make an appropriation of the waters of Clear creek. Nor is there anything anywhere in any of the findings from which this court can determine the essential fact as to which of the parties took the first step towards an appropriation of the water. Notwithstanding this condition of the record, the court finds as conclusions of law that the defendants are the owners of the right to the beneficial use of all the waters of Clear creek at the points of diversion of their several canals as appurtenant to the lands owned by them in severalty, and also that the plaintiff is the owner of the right to the beneficial use of the waters of said creek arising or flowing in the channel below.

When we consider the fact that defendants' diverting works consisting of four dams and ditches leading therefrom, are all situated above plaintiff's point of diversion from said creek, the findings and conclusions simply mean that plaintiff's rights to said water are secondary only and subject entirely to the rights of the defendants of all the waters of the creek. We find nothing in the findings to warrant such a conclusion unless we could feel justified in holding as matter of law that the unsuccessful effort of Hammond in 1878 to appropriate water from Blacksmith Fork river amounted to an appropriation of the waters of Clear creek at that time. We do not feel justified in so holding from the findings of the court, and hence we are forced to conclude that the first appropriation of the waters of Clear creek by both parties litigant was in 1879, but as to which was first the findings are silent. If we go into the evidence to ascertain the fact, it appears quite conclusive that plaintiff's predecessors in interest commenced the construction of plaintiff's diverting works in ...