Wrathall v. Johnson
| Decision Date | 02 January 1935 |
| Docket Number | 5086 |
| Citation | 40 P.2d 755,86 Utah 50 |
| Court | Utah Supreme Court |
| Parties | WRATHALL v. JOHNSON et al |
Appeal from District Court, Third District, Tooele County; Wm. H Bramel, Judge.
Suit by James Leslie Wrathall against Goldie Judd Johnson and others. From a judgment dismissing the suit after a ruling sustaining a general demurrer to the complaint, plaintiff appeals.
REMANDED, with directions.
E. Le Roy Shields and P. C. Evans, both of Salt Lake City, for appellant.
R. A McBroom and H. A. Smith, both of Salt Lake City, for respondents.
OPINION
In substance and effect the plaintiff alleges: (1) Ownership and occupation of a tract of land consisting of approximately 120 acres, located in the southeasterly portion of Grantsville, Tooele county, Utah, described by metes and bounds. (2) Ownership and occupation by the defendants of a tract of land of approximately 80 acres, adjoining that of the plaintiff, described by metes and bounds. (3) That these adjoining tracts of land overlie part of an artesian well district, the area of which is about 10 square miles. (4) That underlying all of the described premises there is a well-defined artesian basin. (5) That the water of this basin is fed or supplied by percolating water, the source of which is the mountain watershed lying to the southwest of the artesian basin, and is of such nature that when the impervious cap is pierced the water is forced to flow to and above the surface of the ground; that said impervious cap is located at a depth of about 350 feet below the surface, and slopes gradually toward the north. (6) That within the artesian area of 10 square miles (6,400 acres) plaintiff's lands, approximately 120 acres, and defendants' lands, approximately 80 acres, are located. (7) There are other parties, owners of land, similarly situated to plaintiff and defendants. (8) That for more than thirty-five years plaintiff has used the water from two two-inch flowing wells for the purpose of irrigating shrubbery, trees, and vegetation, and for domestic and culinary purposes. (9) That the flow of the wells amounted to 15 gallons per minute. (10) That the supply is necessary to plaintiff's use and is his sole supply. (11) That during 1927 and 1928 defendants drilled two four-inch wells on their land adjoining that of plaintiff. (12) That in 1929 defendants installed upon their wells an electric pump, and by the operation thereof withdrew from the artesian basin 180 gallons of water per minute and that defendants are not entitled to draw more than 25 gallons per minute. (13) That the pumping of the water from the basin by the defendants has wholly deprived plaintiff of the use of the water theretofore used by him. (14) That, if the defendants are permitted to continue the operation of their pumps so attached to said wells, defendants will eventually exhaust the supply from the artesian basin. (15) That by reason of the acts of defendants in depriving plaintiff of the use of his water plaintiff has not been able to keep livestock or fowls upon his premises, and has been compelled to bring water from a distance for domestic and culinary purposes. (16) That plaintiff for more than thirty-five years has used water from his wells, which water has been drawn in part from defendants' premises, and that said use has been adverse, open, and notorious and under claim of right. Upon the foregoing allegations plaintiff prays for injunctive relief against defendants and for damages.
The foregoing condensed statement of the material allegations of the complaint, contains no reference to any of the parts of the complaint stricken by the trial court except the last item relating to adverse use. Though the complaint is somewhat lengthy, occupying eleven pages of the printed abstract, the allegations have been reduced to the abbreviated or simple form of statement for the purpose of eliminating all matters not going directly to the gravamen of the cause, and to aid in grasping the essential allegations made, to determine whether or not the complaint does contain sufficient, and the necessary, allegations to state a cause of action, and whether or not it is vulnerable to the attack made by the general demurrer sustained by the court. If the complaint thus stripped to its direct and positive allegations state a cause of action, other assigned errors become immaterial for our purposes; that is to say, if, after eliminating all matters sought to be stricken by the motion to strike and those stricken by the court, the complaint still contains sufficient and the essential allegations to invoke the jurisdiction of the court and sustain a judgment based thereon, the ruling of the trial court on the general demurrer would constitute error, and, if the complaint thus considered does not contain the necessary allegations, it may be questioned whether the matter stricken would furnish the elements essential to make it do so.
We have considered the allegations of the complaint with care, and have likewise examined the positions of the parties to the cause as revealed by briefs and arguments. We have endeavored to get at the fundamentals as presented.
Parties to an action have the right to adopt their own theories of a case. Holman v. Christensen, 73 Utah 389, 274 P. 457. A complaint must be tested by its leading or fundamental allegations. The scope and tenor of a complaint most apparent and clearly outlined by such considerations will be adopted rather than a scope, tenor or meaning indicated by a consideration of detached and fragmentary statements. It is sometimes difficult to harmonize the allegations of a complaint with interpretations and arguments of counsel seeking to support a theory; but, where one position is supported by a pleading and another may not be, the court will adopt that construction of the complaint on general demurrer which will sustain rather than the one which will defeat the action.
"In many cases the courts are called upon to, and frequently do, adjudicate and determine the rights of the respective parties before them contrary to the theories of both litigants." Gledhill et al. v. Malouf, 58 Utah 105, 111, 197 P. 725, 727; Neilson et al. v. San Pete County, 40 Utah 560, 123 P. 334.
An examination of the third amended complaint, the attacks that have been made upon it, and those that preceded it, and the arguments of counsel for the respective parties, as well as the reported remarks of the trial court, all disclose more or less contending views growing out of attempts to apply, harmonize, and interpret the case of Horne v. Utah Oil Refining Company, 59 Utah 279, 202 P. 815, 31 A. L. R. 883. Whether it is the belief that the Horne Case, supra, has departed from the doctrine of priority when applied to artesian areas, or that the doctrine of so-called correlative rights is controlling and incompatible with the doctrine of appropriation, or the only doctrine to be applied to such underground rights, or that the application of the measure of proportionate surface area is the only factor to be applied in determining the quantity to be used under situations analogous to the Horne Case, we may only infer from the arguments, interpretations, and applications offered by the parties litigant, and yet may ultimately be required to decide such questions. We shall have occasion later to examine further into the Horne Case. For the present we shall proceed to an analysis of the allegations of the complaint, as tested by general principles and independently of the Horne Case.
The complaint contains much that is immaterial and ineptly stated. Some allegations were stricken by the trial court that presented matters upon which evidence should be received. They need not here be pointed out.
The parties to this action assert that the determination of their rights is relatively unimportant when compared with the rights affected, depending upon the principles to be applied in the solution of the problem here submitted. It is asserted that the problem is one not only involving, or at least affecting, the interests of several hundred residents in the area overlying the region where the wells of the plaintiff and defendants are located, but the problem is one of such character and moment as to amount to one of general public interest. The arguments and briefs of counsel have sought to present the questions from a point of view and a breadth of discussion based upon an appeal to fundamental principles. The brief of counsel for respondents especially indicates an appreciation of the magnitude and the importance of the problems.
The principles to be applied to the establishment and maintenance of a right to the use of underground waters have many times been before the courts. Differences as to the conceived nature and character of the underground waters, differences in conception of the principles of law to be applied differences as to the application of the law to changing, varying, new, and different conditions, as more has been learned about the conditions of underground waters, the increasing demand made upon the supply, with the uncertainties as to quantity and permanency of supply, fluctuations, the methods and means of obtaining such supply, the matters of altitude, pressure, contour, surface and subsurface, location, and other factors not now occurring to us, all contribute to the complexity of the problems. In certain cases limitations are imposed or applied to a particular problem, in others the complexity, and in others apparent hardship may have affected discussions and affected results and decisions; difficulty in...
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