State v. Barker
| Decision Date | 02 April 1910 |
| Docket Number | 2018 |
| Citation | 37 Utah 345,108 P. 352 |
| Court | Utah Supreme Court |
| Parties | STATE v. BARKER |
Appeal from District Court, Second District; Hon. J. A. Howell Judge.
Action by the State against Joseph Barker to abate an alleged nuisance.
Judgment for defendant. State appeals.
AFFIRMED.
A. R Barnes, Attorney General, for the State.
J. D Skeen for respondent.
This is an action by the State of Utah to abate an alleged nuisance, consisting of a fish hatchery and screens, constructed and maintained by respondent across what was once the natural channel of Huntsville Spring Creek, a tributary of Ogden River, and to enjoin respondent from maintaining said screens and hatchery. From a judgment rendered in favor of respondent, the State of Utah prosecutes this appeal.
The appeal is upon the judgment roll, and the only error assigned is that the conclusions of law and decree are not justified or supported by the pleadings or the findings of fact. It appears from the allegations of the complaint and answer, and from the findings of fact, that respondent is the owner of certain real estate in Weber County, consisting of about ninety-seven acres. Huntsville Spring Creek, which contains about fifteen second-feet of water, flows in a general westerly course across respondent's premises. This creek is a natural feeding and spawning ground of valuable fishes, and is fed by a large number of small springs arising on respondent's premises. In addition to the small springs that arise on these premises, there is a large spring known as the "Knudson Spring," which contains a little more than one-half second-foot of water, which flows through a natural channel into the old creek bed of Huntsvills Spring Creek. The natural channel of Huntsville Spring Creek across respondent's premises was very crooked, and by reason thereof the value of the land was materially lessened for ordinary purposes. In the year 1906 respondent constructed a dam across the main channel of Huntsville Spring Creek near the east boundary line of his land, and excavated a straighter channel of sufficient size to carry all the waters of the creek across his premises, and connected it with the old channel near the west end of his land, and has utilized the old channel for a series of fish ponds and a fish hatchery, and has placed in it a large number of screens to prevent the fish in his ponds from escaping to the waters of Huntsville Spring Creek, which are conceded to be public waters of the State of Utah, and to prevent the fish in Huntsville Spring Creek from entering his private fish ponds. The respondent also cleaned out the Knudson spring, excavated ponds, and placed screens at regular intervals in the channel leading from the spring, making it suitable for the propagation and growth of fish. The respondent also, by means of ditches, diverted from the main channel of Huntsville Spring Creek to his private fish ponds a small stream of water, which ran undiminished and unpolluted back into the main channel.
The court made findings in accordance with the facts as we have stated them, and further found "that the new channel constructed across defendant's [respondent's] land is, and at all...
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