Tanner v. Provo Bench Canal & Irrigation Co.

• Decision Date: 26 December 1911
• Docket Number: 2164
• Citation: 121 P. 584,40 Utah 105
• Court: Utah Supreme Court
• Parties: TANNER v. PROVO BENCH CANAL AND IRRIGATION COMPANY et al

121 P. 584

40 Utah 105

TANNER v. PROVO BENCH CANAL AND IRRIGATION COMPANY et al

No. 2164

Supreme Court of Utah

December 26, 1911

APPEAL from District Court, Fourth District; Hon. J. F. Chidester Judge.

Action by Caleb Tanner against the Provo Bench Canal and Irrigation Company and another.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

J. W N. Whitecotton and S. R. Thurman for appellants.

D. D Houtz for respondent.

FRICK, C. J. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

The respondent instituted this proceeding to obtain permission to enlarge certain irrigating canals or ditches belonging to appellants. The proceeding is grounded on Comp. Laws 1907, section 1288x22, which reads as follows: "When any person, corporation, or association desires to convey water for irrigation or for any other beneficial purpose, and there is a canal or ditch already constructed that can be enlarged to convey the required quantity of water, then such person, corporation, or association, or the owner or owners of the land through which a new canal or ditch would have to be constructed to convey the quantity of water necessary, shall have the right to enlarge said canal or ditch already constructed, by compensating the owner of the canal or ditch to be enlarged, for the damage, if any, caused by said enlargement; provided, that said enlargement shall be done at any time from the 1st day of October to the 1st day of March, or at any other time that may be agreed upon with the owner of said canal or ditch." The provisions contained in the foregoing section were first adopted in 1892 (Laws Utah 1892, p. 93), and have been in force in the territory and thereafter in the state of Utah ever since.

Respondent in his complaint, among other things, in substance, alleged that he had the right to the use of ten second feet of the waters of Provo River in Utah County; that appellants were the appropriators of, entitled to the use of, and did use a large quantity of, the water flowing in said river; that they were diverting said water from said river, and were conveying it through two certain canals or ditches of which appellants were the owners, and which canals constitute one continuous waterway or system several miles in length; "that there is about 1000 acres of arid land owned by divers persons near the north end of the said canal of the North Union Irrigation Company, as described, and it is so located with respect thereto that it is capable of being irrigated by waters drawn through the said canals; that said land is now barren and unproductive, and without artificial irrigation must remain so, and the only available source of water supply for the same is from Provo River, and the water now taken from the said river is insufficient to supply waters for the said land, and, in addition thereto, there is a large area of land in the same location, for the irrigation of which the water supply is wholly insufficient, and water for irrigation in the said locality has a ready rental value for irrigation and other purposes, and by increasing the said water supply in the said locality much arid land will be redeemed, and the use of such water be made of great value to its owner for rental and other purposes; that it is the plaintiff's intention to, and he will, if he is permitted, enlarge the said canals as hereinafter prayed for, supply water for rental, to be used in the redemption of the said arid lands, and increase the supply for lands where the water right is at present insufficient, and divers persons are now ready upon assurance that such water can be supplied to enter into contract with the plaintiff for the use thereof;" that "there is no other available or feasible means of conveying said water to said lands than that of enlarging the said canals;" that appellants do not own any part of the lands traversed by said canals, but that they only own a right or easement in said lands for the purpose of maintaining said canals thereon to convey water through them; that prior to the commencement of this proceeding respondent obtained the permission of the owners of the fee of the land traversed by said canals to enlarge the same and that appellants refused to permit him to enlarge said canals, or to flow his water through them. Respondent therefore prayed that he be permitted to enlarge said canals as one entire waterway to the extent of increasing their capacity ten second feet, that the damages to be sustained by reason of said enlargement be ascertained, and that it be decreed that, upon payment of such damages to appellants, respondent have a perpetual right to flow ten second feet of water through said canals for the purposes aforesaid.

It is not deemed necessary to set forth the averments of appellants' answer, except to state that appellants denied that respondent was the owner of ten second feet of water, or any other quantity in excess of three second feet, and averred that the nature of the soil in which said canals are constructed is such as to cause great injury to said canals if respondent be permitted to reopen the bottom or sides thereof.

The case was tried to the court without a jury, and among other facts found by the court are the following: That respondent owns certain water rights in Provo River, the exact quantity of which is not found except that it exceeds a flow of two second feet; "that at certain seasons of the year there is a large flow of water in said river in excess of the waters appropriated by any person or persons whomsoever which is subject to an appropriation, and which plaintiff (respondent) intends to appropriate and divert from the said river at the point aforesaid, together with the water already owned by him." The point of diversion referred to is that at which appellants divert the water into their canal. The court also found that respondent can use the water he desires to convey through appellants' canals for the purposes alleged in his complaint, which we have set forth, and that he "has no canal or waterway by means whereof he may convey his water to the said lands;" that the appellant the Provo Bench Canal & Irrigation Company has acquired a right of way or easement to construct, and has constructed, a canal sixteen feet wide and about two and one-half feet deep and 9200 feet in length, and that the other appellant has acquired a similar right and easement to construct, and has constructed, a canal which is practically a continuation of the Provo Bench canal aforesaid; that the latter canal is ten feet wide and about two feet deep, the length of which is not given, but the point at which respondent desires to take his ten second feet of water from said canals, and the distance that he desires to enlarge them, are specifically set forth. The court also found that the canals, as now constructed, are irregular in size, and that their maximum capacity at their smallest point is 125 second feet, and that appellants require the full capacity of said canals to carry the water used by them. It is further found that it is feasible to enlarge said canals, and that the same "in their entire course are excavations and cuts and fills of earth, and are such as admit of enlargement and increased conveying capacity without detriment or injury thereto." The court found the damages sustained by each appellant to be the sum of one dollar.

The court, in the decree based upon its findings, among other things, required that the canals be enlarged under the supervision of a competent civil engineer who may be selected by appellants and whose services shall be paid for by respondent; that, wherever the "water surface" of said canals is broken and the character of the soil is such as may cause loss of water by seepage or percolation, such places, if any, must be sealed by puddling or other means so as to avoid loss as aforesaid; that respondent must bear the loss of water while in transit through said canals. It is also provided that the water which is turned into said canals by respondent shall be controlled by appellants at the expense of respondent, who "shall pay all costs of all devices and means made necessary for diverting said added amount of water into said canals, and all devices, gates, and means of dividing said water and measuring the same out of the said canals, and shall pay pro rata the costs and expenses of maintaining said canals in the proportion that ten second feet of water bears to the carrying capacity of said several canals."

The decree also provides as follows: "It is further ordered adjudged, and decreed that the plaintiff, before entering upon work of enlargement, execute and file in this cause in the above-named court a good and sufficient bond in the penal sum of $ 15,000, to be approved by the clerk of said court, in favor of the defendants jointly and severally, conditioned for the execution of said work of enlargement in such manner as to add ten second feet carrying capacity to each of the said canals without injury to the said canals, and to maintain the same with their present margin of safety and in as an impervious state to water as they are at the present time, and conditioned for the payment of all damages that may arise to the defendants or either of them through failure to execute said enlargement in manner aforesaid, and conditioned for the payment to the defendants and each of them of all damages which may be done to them or any person for which they may be responsible, arising out of the enlargement of said canal by plaintiff, and further conditioned that the plaintiff will pay all costs and expenses of controlling, regulating and dividing his water as aforesaid by the defendants and his pro rata costs and expenses of maintaining the...