Town of Mapleton v. Kelly

• Decision Date: 14 June 1911
• Docket Number: 2208
• Citation: 39 Utah 252,117 P. 52
• Court: Utah Supreme Court
• Parties: TOWN OF MAPLETON et al. v. KELLY

117 P. 52

39 Utah 252

TOWN OF MAPLETON et al. v. KELLY

No. 2208

Supreme Court of Utah

June 14, 1911

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by the Town of Mapleton and others against T. R. Kelly.

Judgment for plaintiffs, entered on the pleadings. Defendant appeals.

REVERSED AND REMANDED.

Rydalch & McGurrin for appellant.

A Saxey for respondents.

FRICK C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

This is an appeal from a judgment entered against appellant on the pleadings. The material facts, briefly stated, are in substance as follows:

On the 28th day of March, pursuant to Comp. Laws Utah 1907, section 1288x6, appellant made application to the State Engineer of this state to be permitted to appropriate two and seventy-five hundredths cubic feet per second of the waters of Maple Canyon Creek, a small stream in Utah County. Appellant duly complied with the provisions of the section just referred to, and, pursuant to the notice therein required to be published, respondents, in due time, filed a protest to appellant's application as provided in section 1288x9. A hearing was duly had before the State Engineer upon said application and protest. After having heard the parties, the State Engineer granted appellant's application, and respondent, pursuant to section 1288x14, commenced an action in the district court of Utah County "for the purpose of adjudicating the questions involved between the applicant and the protestant." Respondents, as plaintiffs in the said action, set forth in their complaint the corporate existence of the Town of Mapleton and the town of Springville, pleaded by copy all of the papers that were filed with the State Engineer on the hearing aforesaid, and set forth the proceeding had on appellant's application in full. It also pleaded a certain judgment or decree rendered by the district court of Utah County in which it was alleged that long prior to the filing of appellant's application it was adjudicated therein that the water sought to be appropriated by appellant had been appropriated and used by Springville and Mapleton, the two municipalities aforesaid, and that the appellant as a resident and water user of said Springville was bound by said judgment or decree. It is alleged, in substance, that the rights to the water in the stream in question had been adjudicated and settled, and that appellant, in attempting to appropriate the water mentioned in his application, would interfere with such rights. The facts are stated in the complaint with much particularity, and many details are set forth which it is not deemed necessary to refer to here.

Appellant demurred to the complaint both generally and specially. The demurrer was overruled, and appellant filed an answer, in which, after admitting the corporate capacity of the Town of Mapleton, he made admissions as follows: "Admits that the notice to water users was filed by defendant as in said complaint of plaintiffs set forth. Admits that plaintiffs filed protest to said application in words and figures as in said complaint alleged. Admits that defendant made and filed in the office of the State Engineer his affidavit in rebuttal as set out in said complaint, and admits that R. Lovell Mendenhall filed his additional affidavit against the application of defendant, and admits that the State Engineer of the State of Utah duly approved the said application of defendant as in said complaint alleged.

The foregoing are all of the admissions contained in appellant's answer. The denials following the admissions are stated as follows: "Denies generally and specifically each and every allegation in said complaint contained which is not herein specifically admitted." This general denial (for that is all it amounts to) was followed by affirmative matters in the answer, which, in substance, are: That appellant made application to the State Engineer for the...