Thomas v. Butler
| Citation | 296 P. 597,77 Utah 402 |
| Decision Date | 12 March 1931 |
| Docket Number | 4967 |
| Court | Supreme Court of Utah |
| Parties | THOMAS v. BUTLER et al |
Appeal from District Court, Fourth District, Utah County; Geo. W Worthen, Judge.
Action by Hyrum F. Thomas against Jesse S. Butler and others. From a judgment for defendants, plaintiff appeals.
AFFIRMED.
Robinson & Robinson, of Provo, for appellant.
Christenson & Straw, of Provo, for respondents.
ELIAS HANSEN, J., being disqualified, did not participate.
The plaintiff brought this action in the year 1928 to secure a determination of the right to the use of water arising on land owned by him and to secure a judgment of the court enjoining and restraining the defendants from interfering with his use thereof.
The defendants deny that plaintiff has any right to the use of the water and seek similar injunctive relief against the plaintiff. Judgment was in favor of the defendants. Plaintiff has appealed to this court, claiming that the evidence does not support the judgment.
After describing certain lands in Utah county belonging to him, the plaintiff in his complaint alleges in substance that there arises and flows upon said lands, and has done for more than fifteen years, approximately two cubic feet of water per second of time; that the after comes to the surface in a large number of places known as the Wylie Spring and Thomas Springs along the south boundary of said lands; and that it is now and has been for a great many years collected in a ditch belonging to plaintiff along the south boundary line of said lands, and is and has been for more than fifteen years used by plaintiff for irrigation purposes. The complaint contains numerous other allegations relative to the trespasses of the defendants and the resultant injuries flowing therefrom, but they are unnecessary for the purposes of this opinion.
The defendants admit plaintiff's ownership of the described lands, that the water arises thereon substantially as alleged by plaintiff, and that the defendants have gone onto plaintiff's lands and taken and diverted said waters and applied them to the irrigation of their own lands. By way of affirmative defense and counterclaim the defendants allege that more than thirty years ago they and their predecessors went upon the lands claimed by the plaintiff and other lands adjacent thereto and by means of a ditch known as the Spring Ditch or Wet Ditch constructed by them, diverted all of the waters from certain seeps and issuing from certain springs along the course of said ditch then known as the Price and Butler Springs, and conveyed the water arising from such seeps and springs through the ditch onto their own land and there applied the same for irrigation, domestic, culinary, and stock watering purposes during each and every year for more than thirty years prior to the commencement of the action; that such diversion and use of said water has been open, notorious, exclusive, under claim of right, and has been continuous from season to season during each and every year for more than thirty years up to and including the year 1928; that the water so collected and diverted includes all of the water now claimed by the plaintiff in his amended complaint and from what is known as the Wylie Springs and Thomas Springs; that ever since the construction of said ditch and the collection of the water from said seeps and springs the ditch has been continuously maintained and all of the water issuing from said seeps and springs has been diverted by and into said ditch and by said ditch conveyed to defendants' lands and there used by the defendants and their predecessors for irrigation, culinary, domestic, and stock watering purposes during each and every year; that the amount of water collected, diverted, and used by the defendants amounts to approximately one to three second feet depending upon the season of the year and the rainfall and snowfall of the various seasons.
There are other allegations in the answer and counterclaim, but in the view we take of the case the foregoing are sufficient for the purposes of this opinion.
The issues were found in favor of the defendants and findings of fact were made by the court substantially in harmony with the foregoing and other allegations of the defendants in their answer and counterclaim.
At the trial plaintiff took the position, and offered a great deal of testimony tending to prove, that originally there was no water of any appreciable quantity in the springs, seeps, and percolations now claimed by him. He contends that the springs and seeps are the result of the irrigation of lands situate to the south and west of his property and at a higher elevation during and after the year 1914 when the Strawberry Canal was constructed and used, and that there was not water in the springs and the seeps until the year 1916. In this respect the plaintiff has changed from the theory upon which his action was commenced, otherwise, in drafting his pleadings he would not have alleged that the springs and seeps flowing substantially two cubic...
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