Willow Creek Irrigation Co. v. Michaelson

• Decision Date: 30 March 1900
• Court: Utah Supreme Court
• Parties: THE WILLOW CREEK IRRIGATION CO., A CORPORATION, AND ANDREW N. BJERREGAARD, APPELLANTS, v. SARAH C. MICHAELSON, RESPONDENT

60 P. 943

21 Utah 248

THE WILLOW CREEK IRRIGATION CO., A CORPORATION, AND ANDREW N. BJERREGAARD, APPELLANTS, v. SARAH C. MICHAELSON, RESPONDENT

Supreme Court of Utah

March 30, 1900

Appeal from the Seventh District Court, San Pete County, Hon. Jacob Johnson, Judge.

Action to restrain defendant from interfering with the waters of a certain spring, and to quiet title to the use of the water in the plaintiff. From a judgment for defendant, plaintiff appealed.

Affirmed.

Wm. K Reid, Esq., and James W. Cherry, Esq., for appellants.

The statute, Sec. 2780, C. L. U. 1888, was held to be valid by this court in this case of Stowell v. Johnson, 7 Utah 227.

The trial court decided this case upon the theory that the waters in question arose on defendant's land, after she had acquired title thereto, and for that reason the said waters were appurtenant to the land and not the subject of appropriation.

Such a position is untenable. It is in conflict with all laws relating to water rights. Such a doctrine, at best, would be limited to percolating waters, and could have no application to a natural flowing stream. To sustain such a contention would nullify the doctrine of prior appropriation. The source of the waters involved in this case is the same as that of all other water courses in this State. All are supplied by waters issuing from the land of various owners. If one owner can obstruct the waters arising upon his land as against a prior appropriator of the same, all such land owners can do so as well, and whole streams can be dried up notwithstanding the prior appropriation thereof. Rights by appropriation would be insecure and dependent upon the sufferance of others. Such a doctrine can not be approved by this court. Its effect would be disastrous.

The contention of appellants is in accordance with the established usages, the laws and customs of this and all other States where artificial irrigation is necessary. Stowell v. Johnson, supra; Drake v. Earhart, 23 P (Ida.), 541; Strickler v. City of Colo. Springs, 26 P. 313; Malad Val. Irr. Co. v. Campbell, 18 P. (Ida.), 52; Jones v. Adams, 6 P. (Nev.), 442.

Wm. D. Livingston, Esq., and A. H. Christenson, Esq., for respondent.

That Section 2780, C. L. U. 1888, is not valid is no contention of the respondent, neither does she attack the doctrine of Stowell v. Johnson, 7 Utah 215.

But she insists that said section, when it refers to "any natural stream, water course, lake, or spring, or other natural source of supply," it intends and should be construed as meaning "natural stream, water course, etc.," over which the government, federal and state, have control and over which the United States exercise a proprietary interest, and not as waters the title to which has passed into private ownership. It refers to water which is part of the public domain or ownership of which has been reserved from grants of public land, and not to waters arising in the lands of private owner after he has acquired such ownership; or to such water so long as it remains upon his claim. Crescent M. Co. v. Silver K. M. Co., 54 P. (Utah), 247; Black's Pomeroy on Water Rights, Sees. 30, 44, and cases cited.

The primary source of all title to ownership of all lands, waters, channels, water courses, not excluding ownership by appropriation, is in the United States, subject, of course, to the right of the State to prescribe laws for its government and control after it has become the subject of private ownership. 111 Washburn on Real Property, 169; Black's Pom. on Water Rights, Secs. 31, 32; Kinney on Irrigation, Secs. 111, 124, 134.

The United States in parting with its domain always gives the title absolute, extending skyward indefinitely and to the center of the earth, subject only to such restrictions and reservations as minerals, waters, water courses, channels, etc., as provided by local laws, and customs of the several States duly approved by Congress and by such other legislation as Congress deems expedient. Black's Pomeroy on Water Rights, Sec. 32; Lindley on Mines, Secs. 80, 208, 779.

BARTCH, C. J. McCARTY, Dist. Judge, concurs. BASKIN, J., concurring in the result.

OPINION

BARTCH, C. J.

This action was brought to restrain the defendant from interfering with the water of a certain spring, and to quiet title to the use of the water in the plaintiffs.

It appears from the findings of fact, which are not disputed, that the plaintiff company is a corporation duly organized and existing under the laws of Utah and its business is to control and distribute to its stockholders, for the purposes of irrigation, the water of Willow Creek and its tributaries, in the county of San Pete, State of Utah. The stockholders are owners of land which is being irrigated from that stream, and the plaintiffs are the owners, by appropriation of all the waters flowing therein. In the year 1891, the United States government conveyed by patent to the defendant a certain tract of land, and thereafter water appeared on the land from natural causes and formed a bog or marsh. The water stood still in a natural depression covering about three-fourths of an acre of land, and increased in volume, until 1895, when it flowed in a stream through a natural depression into Willow Creek, and thereafter continued to flow from the bog or marsh into that creek, and the plaintiffs used it with the other water of the stream. In October, 1898, and January, 1899, the defendant by means of a dam, diverted the water flowing from the bog or marsh, and thereby prevented its flowing into Willow Creek, and its use by the plaintiffs. The defendant thus diverted the water, claiming ownership thereof and right to its use upon her land. At the trial the court rendered judgment in favor of the defendant.

The decisive question, to be determined upon this appeal, is, whether the defendant, by virtue of her patent to the land on which the bog or marsh was formed, is the owner of the water in dispute. The appellants contend that, notwithstanding the fact that, at the time the government conveyed the land to the respondent, there was no bog or marsh thereon, nor any water issuing or flowing therefrom, the stream, which afterward began to flow and thenceforward continued to flow therefrom, was a natural stream and subject to appropriation under Sec. 2780, C. L. U. 1888, and that they had a right to and did appropriate the water thereof. The respondent insists that since, at the time the title to the land vested in her, the water in question had not come to the surface and its existence was unknown, the right to such water passed to her with the title to the land, as a part of the purchase, and was not included within the terms of the statute and not subject to appropriation.

In the section of the statute, referred to, it is provided: " A right to the use of water for any useful purpose, such as for domestic purposes, irrigating lands, propelling machinery, washing and sluicing ores, and other like purposes, is hereby recognized and acknowledged to have vested and accrued, as a primary right, to the extent of, and reasonable necessity for, such use thereof, under any of the following circumstances: 1. Whenever any person or persons shall have taken, diverted, and used any of the unappropriated water of any natural stream, water course, lake, or spring, or other natural source of supply."

Undoubtedly under this provision any person or persons may divert and use of the unappropriated water of any "natural stream water course, lake, or spring, or other natural source of supply" for any of the purposes mentioned in the statute, but it is evident that the enactment, although comprehensive terms are employed therein in reference to the appropriation and use of water, for the purposes of irrigation, must be construed to mean a "natural stream, or other natural source of supply," flowing or situated upon lands over which the sovereignty has dominion, or which forms a part of the public domain, and not to streams, or springs, or...