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Show race THE DAIL1? tJTAH RECORp 4 Wednesday, May 14, 1958 SUPREME COURT OPINIONS No. 8767 The 9.33 second feet pertaining IN THE SUPREME COURT OF to this application refers to water THE STATE OF UTAH as determined and defined under Orem City Corporation, the decision of the Supreme Court a municipal corporation. of the State of Utah No. 8390 and Plaintiff and Appellant, 8391, Provo Bench Canal A Irrigav. tion Co., et al, v. Harold A. Linke, Joseph M. Tracy, State Encineer, as State Engineer of the State of et al.. Utah, and the United States of Defendants and Respondents. America through its Bureau of WORTHEN, Justice: Reclamation, Department of the Appellant, Orem 'City Corpora- Interior. This case before the court is retion, appeals from an order dismissing its complaint with preju- lated in many respects to the cases dice on the ground that it failed United States v. Fourth District to state a claim upon which re- Court, 121 Utah 1, 239 P.2d 1132, lief could be granted. rehearing denied 121 Utah 18, 242 On the 22nd of May, 1956, Orem P.2d 774, and Provo Bench Canal City Corporation, a municipal & Irrigation Co. v. Linke, 5 Utah corporation, filed an application 2d 53, 296 P.2d 723. The basic fact with the State Engineer of the situation was summarized by this State of Utah, designated applica- Court in Provo Bench Canal & Irtion number 28194, whereby it rigation Co. v. Linke, supra, as folmade application to appropriate lows: 9.33 second feet of water for muIn the construction of the Deer nicipal purposes. This application Creek Reservoir the U.8.A. acwas denied on January; 15, 1957, quired certain lands most of which and on March 15, 1957,' appellant are at times covered by the water com- stored in such reservoir. It also filed the plaint in the Fourth Judicial Dis- acquired a maximum total water trict Court seeking reversal of the rirht of 52.492 second feet which State Engineers denial of applica- prior thereto had been used to irtion No. 28194. rigate such lands. In June of 1945, Appellants application to the the U.SA. filed with the State EnState Engineer identified the wa- gineer two applications to change ter to be appropriated as: the place of diversion .and use of above-mentione- d - such waters to a place below the to appropriate the same water dis- version of water mouth of Provo Canyon. During the hearing of the protests of the lower water users before the State Engineer and- in the District Court, the applications were 'reduced from 52.492 second feet to 9.33 second feet which amount the District Court found that under conditions was consumed by evaporation and transpiration of plant life without increasing or enhancing the amount of water available to the lower users. The decision, in that case, filed by this court on May 1, 1956, reversed the trial court and remanded the case, ordering the change applications to be approved to the extent of 9.33 second feet of water. Thereafter on May 22, 1956, the appellant filed its application, designated No. 28194, in the office of the State Engineer under which it sought to appropriate for municipal. purposes the same 9.33 second feet of water. The application was denied on the ground that this water had long since been the subject of appropriation and the right to use the water belonged to the United States. There can be no question that the appellant herein is attempting - pre-reservo- ir posed of in the Provo Bench Canal and Irrigation Co. case, supra, for in paragraph 13 of the complaint the appellant alleged: That In the Supreme Court decision of the State of Utah wherein Provo Bench Canal and Irrigation Company, a corporation, et al., was plaintiff and respondent, said case hearing file number 8390 and 8391, which said Supreme Court decision . . . determined that there was 9.33 second feet of water from the flow of waters in the Provo River and Deer Creek Reservoir that was available as a result of the impounding of the waters in the Deer Creek Reservoir; that as a result there is available unused water not heretofore appropriated, nor has an application to appropriate said 9.33 second feet of water, which is unused and available for Plaintiff to appropriate; that a copy of said Supreme Court decision, marked Exhibit B is attached hereto and made a part thereof; The decision of this court referred to in the application and complaint does not state that there is available unappropriated water, a but instead gives the U.S-diright to change the point of - ... that had already been appropriated. Since this is the case the complaint was properly dismissed. Affirmed. Costs to respondents. LEGAL NOTICES THE DAILY RECORD, lFhats What, and The Western Mineral Survey have been approved by the Judges of the Third Judloial District of the State of Utah as a newspaper qualified to publish notices, advertisements, etc as provided by the statutes of the State of Utah. Probate and Guardianship Notices Consult clerk of district court or the respective signers for further information. NOTICE TO CREDITORS A. Estate of BENJAMIN L. FARNSWORTH, Deceased. Creditors will present claims with vouchers to the undersigned at 55 14 West 1st South, Salt Lake City, Utah, on or before the 18th day of July, A.D. 1958. LYDIA C. F. FISHER, of Executrix for the Estate Benjamin L. Farnsworth, Deceased. 8. NELSON, Attorney for Estate of Benjamin L. Farnsworth, deceased. Date of first publication May JOSEPH 1958. gw 1m fmt IF NOTICE Vooir C 14, A.D. )W (6-4-- 58 TO CREDITORS Estate Of ROSETTA WALLACE BENNETT, Deceased. Creditors ' will present claims with vouchers to the undersigned, at 55 4 West 1st South, Balt Lake City, Utah, on or before the 20th day of September, A.D. 1958. WALLACE F. BENNETT and HAROLD H. BENNETT, executors of the estate of Rosetta Wallace Bennett, Deceased. Joseph 8. Nelson Attorney for Estate 55tb West 1st South Salt Lake City, Utaha Date of first publication May Qjpfl Gfcfes k ao 14, 1958. W 8) o L i NOTICE OF ANNUAL MEETING OF STOCKHOLDERS OF HERCULES INVESTMENT CORPORATION The annual meeting of the stockholders of Hercules Investment Corporation will be held at the Newhouse Hotel, Salt Lake City, Utah, Tuesday, June 4, 1958, at 10:00 A.M. In addition to the usual business matters to be taken up at the meeting, It la proposed that the name of the corporation be changed to Hercules Electronics Inc., that the stock be made and that the number of shares aule, thorised be Increased to 10.000,000. Hie full text of the proposed amendments may be read at the office of the corporation or at the office of the corporation counsel. Richard T. Cardall, 53 East 4th South, Bait Lake City, Utah. BY ORDER OF THE BOARD OF DIRECTORS LESLIE C. HACKLER, JR. President Date of first publication May " 6, 1958. "Njfcf is the Russian weed for "Da It may be an odd word to you, Andl IFr AH but dm people of Bert Europe snow it weO ... beer R eray hour, may day. Nyet!" to the right to read a trathftd neno paper. Nyet! to the right to speak an opinion. "Nyet I to eray non Rod-oppmo- ed . Yar Heal Priiifa You naut help or the Reds tear fteedom to gniah in three smriL countries Your doDeis am needed to keep Radio Flee Europe on the ah; eo its 29 tranamitten can e yiklfca MffTinPH HMD DffMnfl IP Don CUi tain, destroying fiiit Bc looping hopG HO CRUSADE fa FREEDOM i |