Stowell v. Johnson

Citation26 P. 290,7 Utah 215
CourtSupreme Court of Utah
Decision Date02 April 1891
PartiesBRIGHAM STOWELL, AND OTHERS, RESPONDENTS, v. JOSEPH T. JOHNSON, AND OTHERS, APPELLANTS

APPEAL from a decree of the district court of the first district.

The appeal was from the judgment roll, consisting of the complaint, answer, findings and decree. The complaint was filed July 17, 1888, and alleged the ownership in the plaintiffs of certain real estate, and a diversion of the waters of Waterfall canyon creek, and one-half the waters of Strong's canyon creek, made more than ten years before the beginning of the suit, for the purpose of irrigating the said lands and of supplying Ogden City with water, and a continuous use of said waters after said diversion and appropriation to the beginning of the suit and an interference since June 1st, 1888, by the defendants with the plaintiffs' use of said water, and prayed a perpetual injunction against the defendants from interfering with said use of all the waters of Waterfall canyon creek and one-half of the waters of Strong's canyon creek.

The answer of the defendants, after denying plaintiffs' appropriation, alleged that the two streams named in the complaint united lower down to form Canfield creek, and that the defendants were the owners of certain lands lying along Canfield creek, and while the plaintiffs' lands were unoccupied, unimproved, and unclaimed lands of the United States, appropriated for the irrigation of their lands and for domestic purposes all the waters of Canfield creek; that during a portion of every season there was a surplus of water, and that certain of the defendants had the right to use such surplus water during a portion of the year, and that the present season was exceptionally dry and there was no surplus of water.

The findings of the court were as follows: That the plaintiffs were the owners of certain lands, and that the defendants were and had been the owners in fee of certain lands, since prior to the year 1880, and that all of said lands were agriculturally used, but were arid without irrigation; that the two streams, Waterfall canyon creek and Strong's canyon creek, rise in the mountains and run westerly, and form a junction making Canfield creek, which junction is east and north of the lands of the defendants, and west and south of the lands of the plaintiffs, and that said Canfield creek at all the times mentioned in the complaint and answer, has flowed across and over the lands of the defendants, and that said streams were the only sources of supply for both plaintiffs and defendants; "that the several defendants in this action, and their grantors and predecessors in interest, and while the several pieces or parcels of land described in the complaint as owned in severalty by the plaintiffs were unoccupied, unimproved, uncultivated, and unclaimed lands of the United States, to-wit: in the year 1848, by means of dams placed in and across the channel of said Canfield creek, below and west of the junction of the two streams aforesaid, and also in and across the channel of said Strong's canyon creek, above and east of the junction of the two aforesaid streams, and also by means of ditches and canals tapping the said Canfield creek and the said Strong's canyon creek at various places, and leading therefrom, diverted, conveyed, and appropriated to and upon the several pieces of land, so owned by the defendants and their grantors and predecessors in interest, for the irrigation of said lands of the defendants and for domestic purposes, all of the waters of said Canfield creek, which said last named creek was then, and ever since has been and now is, composed of the waters from said Waterfall canyon creek and said Strong's canyon creek, which said use aforesaid, was a necessary and beneficial use thereof; that said use, diversion and appropriation by the defendants, and their grantors and predecessors in interest, of all the waters of said Canfield creek, was so made fully and completely, during each and every part of each and every year, while the several pieces or parcels of land now owned by the several plaintiffs herein were uncultivated unimproved, unclaimed and unoccupied lands of the United States; and the several defendants and their grantors and predecessors in interest, did so use during each and every part of each and every of said years, and until the interruptions in said use hereinafter named, all the waters of said Canfield creek and of the two said tributaries thereof, except at a time or times in said years when there has been a large increase of the flow of said streams by reason of the melting of snow in the mountains at or near the source of said tributaries of said Canfield creek; that several years subsequent to the appropriation and use of the waters of said streams by the defendants, their grantors and predecessors in interest, as aforesaid, to-wit: about the year 1854, the predecessors in interest and grantors of the plaintiffs entered into possession of the lands described in the complaint and cultivated about ten acres thereof, by diverting and conducting and appropriating a portion of the waters of said Waterfall canyon creek and a portion of the waters of said Strong's canyon creek to and upon the said ten acres of land during the irrigation season: that subsequent to the year 1854, to-wit: about 1862, the grantors and predecessors in interest of the plaintiffs, and during the irrigation season of said year, used, diverted, and appropriated and conducted to and upon the lands described in the complaint for the irrigation thereof and for domestic purposes, thirty one-hundred-and-sixteenths (30-116) of the waters of said Strong's canyon creek and also thirty one-hundred- and-sixteenths (30-116) of the waters of said Waterfall canyon creek openly, peaceably and uninterruptedly continuously and adversely to the defendants and their grantors and predecessors in interest; and ever since said year 1862, and up to the time of the filing of the complaint in this action, the plaintiffs and their grantors and predecessors in interest have used and continue to use during the irrigation season of each and every of said years thirty one-hundred-and-sixteenths (30-116) of the waters of each of the streams aforesaid openly, peaceably, uninterruptedly continuously and adversely, for the purposes aforesaid; that ever since the year 1862 and up to the time of the filing of the complaint in this action and during the irrigation season of each and every year since the time the defendants and their grantors and predecessors in interest have diverted appropriated, used and conducted to and upon their said lands for the irrigation thereof, and for domestic purposes, by means of the dams and ditches aforesaid, eighty-six one-hundred-and-sixteenths (86-116) of the waters of said Waterfall canyon creek and also eighty-six one-hundred-sixteenths (86-116) of the waters of said Strong's canyon creek; that the irrigation season begins on the 1st day of April of each and every year and terminates on the 1st of November of each and every year, and when said term is used in these findings it includes the period of each and every year between the two dates last aforesaid; that between the 1st day of November, 1882, and the 1st day of April, 1883, by means of certain pipes laid from said Strong's canyon creek and from said Waterfall canyon creek, by the Ogden Water Company, and tapping the two said streams above their junction, the plaintiffs diverted one-half (1/2) of the waters of Strong's canyon creek and all of the Waterfall canyon creek and conducted the said portions of the said two streams through the pipes aforesaid between the two dates last aforesaid, to-wit: between the 1st day of November, 1882, and the 1st day of April, 1883, to Ogden City for the purpose of furnishing the inhabitants thereof with water; and between the two last dates aforesaid to-wit, from the 1st day of November, during each and every year...

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19 cases
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    • United States
    • Utah Supreme Court
    • January 3, 1947
    ... ... dry season of the year ... The ... cases of State v. Imlah, 135 Or. 66, 294 P ... 1046, 1048, and Johnson v. Knott, 13 Or ... 308, 318, 10 P. 418, quoted from in the state's brief, do ... not involve tidal waters and each define the high water mark ... lakes or steams greater than or adverse to the public or any ... other citizen." Stowell v ... [176 P.2d 141] ... Johnson , 7 Utah 215, 26 P. 290; State v ... Rolio , supra; Kinney on Irrigation, 2d Ed., Sec ... ...
  • Wrathall v. Johnson
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    • Utah Supreme Court
    • January 2, 1935
    ... ... doctrine, among which were Munroe v. Ivie , ... 2 Utah 535; Crane v. Winsor , 2 Utah 248; ... Lehi Irrigation Co. v. Moyle , 4 Utah 327, 9 ... P. 867, and definitely repudiated the common-law doctrine of ... riparian rights, Stowell v. Johnson , 7 Utah ... 215, 26 P. 290; Yates v. Newton , 59 Utah ... 105, 202 P. 208 ... [40 P.2d 770] ... The ... law generally is that, where no statutory procedure has been ... prescribed, a right to the use of water may be initiated and ... consummated by diversion ... ...
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    ...Jones v. Adams, 19 Nev. 78, 6 P. 442; New Mexico: Albuquerque Land & Irr. Co. v. Gutierrez, 10 N.M. 177, 61 P. 357; Utah: Stowell v. Johnson, 7 Utah 215, 26 P. 290; Wyoming: Moyer v. Preston, 6 Wyo. 308, 44 P. 5. California: Osgood v. El Dorado Water & Deep Gravel Mining Co., 56 Cal. 571. 6......
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