Whiterocks Irr. Co. v. Mooseman

• Citation: 141 P. 459,45 Utah 79
• Decision Date: 11 August 1914
• Docket Number: 2601
• Court: Supreme Court of Utah
• Parties: WHITEROCKS IRR. CO. v. MOOSEMAN et al

141 P. 459

45 Utah 79

WHITEROCKS IRR. CO. v. MOOSEMAN et al

No. 2601

Supreme Court of Utah

August 11, 1914

Appeal from District Court, Fourth District, Hon. A. B. Morgan Judge.

Action by the Whiterocks Irrigation Company against Christian Mooseman and others.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

Peter Hansen and Charles De Moisy for appellant.

Thomas W. O'Donnell for respondents.

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

OPINION

STRAUP, J.

This action was brought to set aside a judgment rendered in the Fourth Judicial District in March, 1912, in favor of the defendants and against the plaintiff, whereby defendants were awarded a perpetual right of way or easement over and through an irrigation canal of the plaintiff's and the right to enlarge and use the canal for the conveyance of water belonging to the defendants.

By the complaint in this action it, in substance, is alleged that in February, 1911, the defendants, as plaintiffs, filed an action against the plaintiff "by which they sought to have a right of way condemned through and upon the canal belonging to this plaintiff corporation, and also to enlarge said canal in accordance with the prayer of the complaint as filed." A copy of the decree is then set forth. It, after reciting that the court heard the evidence and made findings and conclusions, adjudges and decrees in accordance therewith:

"That there be and there is hereby condemned to plaintiff's use, as a canal or water course to convey water to the lands of said plaintiffs from Whiterocks river, a perpetual easement of right away upon, over, and through the canal of defendant corporation, from the dam on said Whiterocks river extending to the ditch or headgate thereof of the plaintiff which diverts said water from the canal of the defendant, along the lines thereof; said land over which said easement is sought to be obtained, and is hereby obtained, and which the plaintiffs seek to enlarge the canal thereon being as follows:"

Then follows a description of the lands over which the easement and canal extend. The decree further recites:

"That the said plaintiffs do have the right to run their water down the said defendant's canal or water course upon paying all the expenses that may necessarily be incurred in the repairing and putting in better condition the old river bed from the dam down to the head of the ditch."

It further requires the plaintiffs in that action, the defendants herein, to pay all expenses for the enlargement of the canal and their proportional expense of maintenance and repair; and that the enlargement be made under the plaintiff's direction and at such time and in such manner as not to interfere with its rights. It is further averred that the lands over which the easement extends "lie wholly within the Indian grazing reservation," except three tracts which are patented Indian allotments held in severalty. It is further averred that the plaintiff, upon the application filed before the Secretary of the Interior of the United States, was granted "an easement over, through and across said Indian grazing reservation, along the line of the ditch described in its application, and practically the same as described in the decree hereinabove set forth; that the plaintiff is not the owner in fee or otherwise of any of the lands hereinabove described as a part of the Indian grazing reserve, and holds the same only by right of easement, which easement grants to this plaintiff only the right to use the lands described in its application for a right of way." It then is averred...