Whitmore v. Salt Lake City

CourtSupreme Court of Utah
Citation57 P.2d 726,89 Utah 387
Decision Date15 May 1936
Docket Number5607
PartiesWHITMORE v. SALT LAKE CITY et al

Rehearing Denied October 14, 1936.

Appeal from District Court, Third District, Salt Lake County; Roger I. McDonough, Judge.

Proceeding before George M. Bacon, as state engineer of the state of Utah, by Leland H. Kimball to appropriate certain water wherein A. O. Whitmore filed objections. From a decision of the state engineer, the plaintiff appealed to the district court wherein Salt Lake City and others were parties. From an adverse judgment, A. O. Whitmore appeals.

AFFIRMED.

T. D Lewis and Lynn S. Richards, both of Salt Lake City, for appellant.

Fabian & Clendenin and Fisher Harris, City Atty., all of Salt Lake City, Joseph Chez, Atty. Gen., and Glen E. Howe, City Atty., of Murray, for respondents.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

ELIAS HANSEN, Chief Justice.

This appeal involves a review of a judgment declaring valid a filing for power purposes on a flow of 15 cubic feet per second of the water of Little Cottonwood creek in Salt Lake county, Utah. The controversy began before the state engineer of the state of Utah, before whom plaintiff herein objected to the approval of an application of one Leland H. Kimball to appropriate the water in question. After a hearing was had before the state engineer, the application was approved. Mr. Whitmore, plaintiff herein, appealed from the decision of the state engineer to the district court of Salt Lake county, Utah. At the time of the hearing before the district court, the defendant Murray City held title to the water filing in controversy. Mr. Kimball transferred all of his interest in the filing to Salt Lake City and it in turn transferred its interest therein to Murray City.

Plaintiff attacks the judgment appealed from on the following grounds: That an appropriation of water of a natural stream may not be made where the proposed point of diversion from the stream is upon private property of another. That plaintiff has such an interest in the water in controversy as to preclude others from the appropriation thereof. That the information necessary to make the application for the appropriation was obtained by a trespass and, therefore, the application and all proceedings had thereunder are void. That the application, in any event, is void because actual construction work was not commenced within six months after its approval. That if any actual construction work was performed within six months after the approval of the application, such construction work constituted a trespass upon private property was sham and frivolous and not done in good faith, and hence must be disregarded.

A proper understanding of the questions of law presented for review requires a brief summary of the evidence offered and received at the trial. Little Cottonwood creek has its source in the Wasatch mountains. It flows in a westerly direction into Salt Lake Valley. The point designated as the proposed point of diversion in the application here brought in question is near the mouth of Little Cottonwood Canyon, down which the creek of the same name flows. At the time the application was filed, plaintiff was operating an oxygen plant about 150 feet above the proposed point of diversion. The oxygen plant was operated with hydraulic power generated by water diverted from Little Cottonwood creek some distance above the plant. Apparently, plaintiff is the owner of the right to use the water power which is so used to operate the oxygen plant. About three-quarters of a mile west and down the creek from the oxygen plant, Murray City had, prior to the commencement of this controversy, diverted water from Little Cottonwood creek to operate a hydro-electric plant owned and operated by it for the generation of electricity for the use of the city and its inhabitants. Prior to making the filing here brought in question, Mr. Kimball conceived the idea that if Murray City could be induced to move its power plant upstream and divert water with which to operate the same at or near the tailrace of plaintiff's oxygen plant, then and in such case the water necessary to operate the Murray City plant could be used for that purpose and returned to Little Cottonwood creek at such an elevation as to run by gravity to Salt Lake City and there be used as culinary water. The filing here involved was made with that end in view. After the application was approved and Kimball assigned his interest therein to Salt Lake City, which in turn transferred it to Murray City, the plant of Murray City was moved upstream. Proceedings were commenced to condemn lands for the construction of diversion works at or near the point designated as the proposed point of diversion in the Kimball application. In the condemnation proceedings an order of occupancy was granted and at the time of the trial of this cause the diversion works of Murray City had been constructed. No claim is made, however, that plaintiff is estopped from asserting any rights that he may have had in and to the use of the waters claimed by Murray City under the Kimball filing because of the condemnation proceedings or otherwise. Nor does plaintiff contend that Murray City may not condemn lands for the purpose of constructing thereon works necessary for the diversion of waters of Little Cottonwood creek. He does contend that Murray City should be required to pay to him in the condemnation proceedings the value of the lands sought, not as mere land, but as land fitted by nature for a power site, and that a substantial part of the value of the power site so being condemned is plaintiff's and not Murray City's right to divert the water of Little Cottonwood creek at the point in question.

The application involved in this litigation was filed in the office of the state engineer of Utah on September 26, 1928. It was approved by the state engineer on May 18, 1929. The applicant was notified that he was required to begin actual construction work within six months after the date of the approval of his application and that he must diligently prosecute such work to completion. Leland H. Kimball testified that he is a civil engineer and has been such for sixteen years; that he has had considerable experience in making filings upon water for himself and others; that he has been intimately acquainted with Little Cottonwood creek since 1913; that he has been along the creek hundreds of times; that he had made numerous observations of the creek with the idea of securing a culinary supply of water for Salt Lake City; that before making the filing on the waters of Little Cottonwood creek he did surveying and drew complete plans and specifications for the removal of the Murray City plant; that such work was of the value of between $ 1,500 and $ 2,000; that he used a map of the Denver & Rio Grande Railroad Company to ascertain the point mentioned in his application for diverting the water from Little Cottonwood creek; that such point is in error and is in the public road about 85 feet to the north of the creek; that on or about July 26, 1928, he went to the place mentioned in his application as the proposed point of diversion; that he took with him one John I. Edwards whom he had employed to do some work at that place; that Mr. Edwards dug a number of test pits and a trench and cut some trees and brush at that place; that he paid Mr. Edwards $ 16 for four days' work. A canceled check in the sum of $ 16, claimed to have been given to Edwards in payment for the work, was received in evidence. Mr. Kimball further testified that the digging of the test pits and the trench did not reveal anything as to the nature of the ground near the diversion point that was not expected. The testimony of Mr. Kimball touching the nature of the work done at the proposed point of diversion, the number of days required to do the same, and the payment made for the work is corroborated by the testimony of Mr. Edwards.

Plaintiff testified that he was, during the year 1929, manager of the oxygen plant located about 150 feet up the stream from the point where Murray City has recently installed construction works for the diversion of water from Little Cottonwood creek into its pipe line; that between September 26, 1928, and July 8, 1931, he was frequently at the oxygen plant and along the banks of Little Cottonwood Creek at and near the place designated in the Kimball application as the proposed point of diversion; that after Kimball filed his application, plaintiff made frequent observations to see if any work was being or had been done at the proposed point of diversion, and from such observation was certain that no work was done; that no test pits, trenches, or other work was done at that point during 1929 or at all until Murray City in 1931 began the construction of its diversion works.

Richard Whitmore testified that he is a son of the plaintiff; that during the summer of 1929 he was working at his father's oxygen plant and was conducting some experiments near and to the west of the oxygen plant; that he worked from about 8 o'clock in the morning until between 4 and 6 o'clock in the afternoon; that from the place where he worked he had a clear view of both banks of Little Cottonwood creek at and near the point of diversion mentioned in Kimball's application; that he did not see Mr. Edwards at that point; that he inspected the ground at and near the place where it was claimed Mr. Edwards dug a trench and some test pits; that there was no evidence of any work having been done at that point prior to 1931 when Murray City began the construction of its diversion works.

Sam Steward testified that he was employed by plaintiff and worked in his oxygen plant...

To continue reading

Request your trial
5 cases
  • Sigurd City v. State
    • United States
    • Utah Supreme Court
    • October 19, 1943
    ... ... Reversed with instruction ... William ... A. Hilton, of Salt Lake City, for appellant ... Grover ... A. Giles, Atty. Gen., S.D. Huffaker, Asst ... state. Adams v. Portage I. R. & P. Co. , 95 ... Utah 1, 72 P.2d 648; Whitmore v. Salt Lake ... City , 89 Utah 387, 57 P.2d 726; Big Cottonwood Lower ... Canal Co. v. Cook ... ...
  • Scherck v. Nichols
    • United States
    • Wyoming Supreme Court
    • October 30, 1939
    ...(Ore.) 189 P. 986; Alaska Gold Mining Company v. Mining Company, 239 F. 638; Avery v. Johnnson (Wash.) 109 P. 1028; Whitmore v. Salt Lake City (Utah) 57 P.2d 726; Connolly v. Harrel (Mont.) 57 P.2d 781; 122-404, W. R. S. 1931. Appropriations cannot be acquired for speculation. 67 C. J. 973;......
  • Riordan v. Westwood
    • United States
    • Utah Supreme Court
    • March 11, 1949
    ... ... Weston ... L. Bayles and Knox Patterson , both of Salt Lake ... City, for respondent ... Wade, ... Justice ... Kents Lake Irrigation Co. , 104 Utah ... 202, 135 P. 2d 108; Whitmore v. Welch , 114 ... Utah 578, 201 P. 2d 954; Lehi Irr. Co. v ... ...
  • Moyle v. Salt Lake City
    • United States
    • Utah Supreme Court
    • January 6, 1947
    ... ... and usages of the inhabitants have never considered it ... applicable, and have never regarded it'" ... [ Stowell v. Johnson , 7 Utah 215, 26 P ... [111 ... Utah 216] By an unbroken line of cases this court has ... maintained the law of appropriation. Whitmore v ... Salt Lake City , 89 Utah 387, 57 P. 2d 726; ... Spanish Fork West Field Irr. Co. v. District ... Court , 99 Utah 527, 104 P. 2d 353 ... There ... is no question that as to the quantity of water in a ... water right the beneficial use is "the basis, the ... measure and ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT