Wellsville East Field Irr. Co. v. Lindsay Land & Livestrock Co.

• Decision Date: 14 May 1943
• Docket Number: 6404
• Citation: 137 P.2d 634,104 Utah 448
• Parties: WELLSVILLE EAST FIELD IRR. CO. et al. v. LINDSAY LAND & LIVESTROCK CO. et al
• Court: Utah Supreme Court

137 P.2d 634

104 Utah 448

WELLSVILLE EAST FIELD IRR. CO. et al. v. LINDSAY LAND & LIVESTROCK CO. et al

No. 6404

Supreme Court of Utah

May 14, 1943

For opinion on rehearing see 104 Utah 498.

Appeal from District Court, First District, Cache County; Lewis Jones, Judge.

Suit by the Wellsville East Field Irrigation Company and others against the Lindsay Land & Livestock Company, and others, to enforce a previous decree which purported to be a general adjudication of all water rights in Little Bear River.

From a judgment for plaintiffs, defendants appeal.

Affirmed in part and reversed in part and remanded.

Thatcher & Young, of Ogden, for appellants.

J. D Skeen, of Salt Lake City, and Young & Bullen, of Logan, for respondents.

WOLFE Chief Justice. McDONOUGH, J., concurs. MOFFAT, Justice LARSON, Justice, HOYT, District Judge, concurring in part and dissenting in part. PRATT, J., on leave of absence. WOLFE, C. J., and McDONOUGH, J., in minority on question of interruption of use by Lindsay Land and Livestock Company. HOYT, District Judge, dissenting from holding that a water right could be obtained by adverse possession between years 1903 and 1939.

OPINION

WOLFE, Chief Justice.

This started as a suit in equity, brought by the plaintiff irrigation companies to enforce a previous decree of the District Court of Cache County in a case entitled Utah Power and Light Co. v. Richmond Irrigation Company. That decree, commonly known as the Kimball Decree, was entered February 21, 1922. It purported to be a general adjudication of all water rights in Little Bear River. However, some of the defendants in the present suit were not bound by the Kimball Decree because neither they nor their predecessors were made parties to it. The plaintiffs base their claims entirely upon the Kimball Decree and pray that the defendants, and each of them, be enjoined from claiming or asserting any rights to the use of water of Little Bear River or from diverting or otherwise interfering with the flow of any water from said river beyond or in excess of the rights specifically decreed to each of them by the court in the Kimball Decree.

At the outset each defendant entered a plea in abatement on the theory that the suit called for a general adjudication of water rights and that, therefore, by virtue of Sec. 100-4-3, R. S. U. 1933 as amended by Chap. 112, Session Laws of 1939, the court had no jurisdiction to proceed except as prescribed by that statute. It is admitted that the prescribed statutory procedure for a general adjudication was not followed. In this proceeding were a general statutory adjudication of water rights it would have been error for the trial court to refuse to abate the proceedings and refer them to the State Engineer as prescribed by statute. However, this court recognized in the case of Spanish Fork West Field Irr. Co. v. District Court, 99 Utah 558, 110 P.2d 344, that all suits involving water rights were not necessarily general adjudications. When a "private suit" was brought we held that it was not necessary for the court to force it through the statutory procedure for a general adjudication. We do not think this action had the comprehensiveness of a suit to adjudicate all the water of a system. It was originally a private suit to determine the relative rights of these defendants as against these plaintiffs and at least for the purposes of this decision we treat it as such without thought of laying down any line at which a so-called private suit may in reality become or take on the aspects of a general adjudication.

The trial court, after hearing the evidence, found against the defendants on all issues raised and enjoined them from using the water. It then superimposed on its judgment, which it called an Interlocutory Judgment, an order that the suit be converted into a general adjudication of the Little Bear System under the provisions of Chapter 4 of Title 100, R. S. U. 1933. Each of the defendants appealed. The propriety of this latter action is not before us.

At the trial the plaintiffs proceeded upon the theory that all of the defendants in their separate answers had set up claims adverse to the Kimball Decree. So after offering the Kimball Decree in evidence, they rested. Because of the different bases for the defenses urged by the different defendants and the relatively large number of claims involved, it will be necessary to set out each claim separately for this is in reality five suits in one.

As to Defendant Lindsay Land and Livestock Co.

We first consider the defense and the evidence in support thereof urged by defendant Lindsay Land and Livestock Co. This defendant by its separate answer asserted two distinct claims to the use of water from Little Bear River. First, a right decreed to it by the Kimball Decree to 1 c. f. s. with a priority date of May 1, 1890. This right was affirmed by the trial court. It is not involved in this appeal and no further mention need be made of it. The second claim asserts the right to divert water from two points on Davenport Creek, a tributary to Little Bear River. This second claim is based on adverse user, abandonment, and statutory forfeiture for failure of the prior owner to use for five years, supported by a filing with the State Engineer for appropriation of 2 c. f. s. of water with a priority date of November 17, 1939, which application is in good standing with the office of the State Engineer.

The evidence in support of this claim shows that George Nichols, the predecessor in interest to this claim was a defendant in the Kimball Decree. He, an old man at the time, appeared, told the clerk he had answered as required by the summons, and then left without making further appearance or filing an answer in the cause. As a result of his failure to make a proper appearance, a default judgment was entered against him and he was awarded no rights to the water from Little Bear River. Nevertheless he continued to use the water just as he had used it before the decree. His testimony was that he had used the water continuously for over 52 years. Some ten other witnesses all of whom were well acquainted with the Nichols land testified that Nichols and his sons had used this water each and every year since the Kimball Decree in 1922. The land was watered as much as six times after the high water season. This evidence is positive and is for the most part uncontradicted.

The deposition of Orson M. Wilson, former president of the Hyrum Irrigation Co., was introduced and read into the record by the plaintiffs. Wilson testified that it was common knowledge that Nichols was using the water under claim of right even though he had not been awarded any water by the Kimball Decree. Wilson further testified that he talked with Nichols in the summer of 1926; that at that time Nichols was irrigating his land with the water in question; that he told Nichols that he, Nichols, had no rights under the decree; and that Nichols indicated that he had a right to use the water anyway. Wilson could not remember whether he had the water turned off at that time or not. He did not go up to the Nichols property again that season although he knew that Nichols would continue to use the water. He stated that he recognized that a mistake had been made by Nichols' failure to "prove up" in the Kimball suit but stated that the plaintiffs intended to stick to their rights under the decree. He further stated that whenever the plaintiffs discovered that Nichols had water on his land they would turn the stream off. However, when asked: "You as an old citizen here recognized that notwithstanding a mistake had been made, he [Nichols] had some rights here, didn't you"; he answered: "Well I won't say." "I won't answer that."

We must conclude from this evidence that Nichols with the knowledge of the irrigation companies' officials openly ignored the Kimball Decree and under a claim of right used the water each and every year just as he had used it before the decree was entered.

But was such adverse use uninterrupted as meant by the law? Plaintiffs' witnesses testified that they turned the water off whenever they discovered that Nichols was using it. On several occasions they told Nichols to quit using the water. Nichols himself admitted that one Frank Price turned the water off once about 25 years before the date of the suit and that several years later one Leishman turned it off once. Other witnesses for the plaintiffs testified that they turned the water off in 1923, 1924, 1926, 1927, 1933 and quite regularly from then until the date of the suit.

Defendant Lindsay Land succeeded to the Nichols rights in 1939 by purchase. It filed an application to appropriate 2 c. f. s. of water with a priority date of November 17, 1939, and the application was approved on the theory that the plaintiffs had forfeited their rights to this water by their failure to use it for over five years. Lindsay Land admits that Nichols was bound by the Kimball Decree and that he was awarded no rights by it, but asserts, along with other defenses, that the above facts show title by adverse user.

The writer of this opinion has previously expressed considerable doubt as to whether title in an intangible like a water right could be acquired by adverse possession. See discussion in dissenting opinion in Hammond v. Johnson 94 Utah 35, 75 P.2d 164. But regardless of the view there expressed on this subject, the law is well settled in this jurisdiction, that at least under our statutes prior to 1903, when the provisions providing for the exclusive method of appropriating water were adopted, title could be acquired by adverse user. Ephraim Willow Creek Irr. Co. v. Olson, 70 Utah 95, 258 P. 216; Smith v. North Canyon Water Co., 16 Utah 194...