Show decision in fisher city water suir sui tho the following is tho the decision in full in the r fisher sher vs bounri bountiful ful suit as given by judge ro bapp lap of I 1 tile second judicial district court of utah on novem november ber the plaintiffs in this case over 20 years prior to 1893 acquired a fixed and vested right in a and nd t to a portion of the waters of a stream known as barton creek arasin arising in the mountains east of defendant city and running into said city in 1893 bountiful ua city was incorporated po rated as the result of some mass mechin meetings gs held bythe by the citizens of the territory comprising bountiful city and the subsequent statutory proceedings taken by them at the public meetings C held prior to the incorporation the question of the control of the water leading into the city was under discussion the plaintiff and some others insisting that tile the city could not and 1 it not to control the same while the great majority of those present at these meetings contended to the contrary prior to the incorporation po ration the barton creek irrigation company which had bad been incorporated under the laws of the territory of utah had annually met and elected the officers provided by law among which was the and had levied a tax as provided by the statute after tile the incorporation of bountiful city the city assumed the right to appoint a for barton creek and also to levy the annual assessment due from each of the water users and ahey have ever since so continued to exercise authority over the creek the plaintiff refused to recognize their authority failed to pay the taxes assessed and thereupon the city after the tax became delinquent sold certain lands upon which the water was used for the payment of the tax such sale however was absolute ly irregular r and is so admitted to be ily by the defendant city the main question involved in this case is whether bountiful city either by virtue of the conduct of tho the plaintiff or by virtue of the conduct of the majority of the members of the barton creek company is authorized to exercise such control and management 0 over the waters of barton creek as will enable it without the consent of ocho ilio appropriators of the waters of said creek to appoint a for them and to determine the time manner and amount of water distribution levy a tax for the necessary expenses in in operating ta such water system and upon failure in the payment of such tax to sell the real or personal property of of the person ag against ainest whom such tax has been levied the mere incorporation of the inhabitants of certain specified territory tarri tory into a municipality does not carry with it the acquisition or management in of any public or private property situate within the foundries boun dries of such city unless prior to such incorporation the same bounded territory had existed as an incorporated city or town and under such old conditions had acquired such property it is true however that all property and all persons within the city are subject to a proper and reasonable control by the officers of such city to the end that an orderly administration of affairs may be obtained within the municipality ci and for that purpose the legislature has given to every city government within this state certain statutory powers among 0 which is the alie one relied upon by the defendant in this action and contained in subdivision 10 of section 1755 of the corn com piled laws of which provides that a city shall have power to control the water an and dwater water courses leading to the city and to regulate 0 and control the water courses and mill privileges within the city under that pow power or tho city has unquestionably authority not only to regulate reg ulato and control water curses wholly within its bound ries which is a common authority but because of the once that eliat might result from having ing water and water courses not wholly within the city traverse the hie city limits in whole or in part without restrictions the legisla legislature k 3 has given to the city c councils of such cities the power also to control the water and water courses leading to the city thus if a ditch from such such awater course should run in the center of a street the city authorities would undoubtedly have tile the right to remove such ditch to one side or the other provided always as in the same section provided that such acts of control be not exercised to tile the injury of any rights already acquired by actual owners in fact this proviso would seem to be the limit the leg legislature i slature placed upon the exercise of such control it becomes important then to inquire what are the rights acquired by the actual owners of barton creek the plaintiff being one of such owners the appropriation pria tion of water for beneficial purposes establishes in the appropriator ator a special property including an unrestricted right to the user of such water to the extent of his appropriation and not contri contrary ary to established rights 0 of any prior appropriator such unrestricted right 0 includes the power of such appropriator to associate himself with the other appropriators into an all association known as an arri irrigation gation district such association gave the appropriator the right to choose a water ter and other governing officers for himself and associates in the manner pointed out by the statutes giving him in such election an acreage and not a per capita representation such statute f further guaranteed to the appropriator that the tax determined exclusively by the members of such association shall be a law in such lucli water districts without the approval of any city council of any city into which the water us ed d by him might eventually run it further guaranteed that the lien created by such tax shall be limited to the interest of such appropriator ator in the water flowing i in the association ditch or canal but that such tax shall not create any lien upon any land and that all that could be sold for sue such tax is 3 the appropriators interest in the tho water such statute further guaranteed collim that the officers chosen by his acreage vote should have trio the exclusive right to establish the rules for the user of his water these rights in were all aa acquired by the plaintiff and his associates socia tes prior to the incorporation of bountiful city the question then is have any of these acquired rights by the actual owners of barton creek been interfered with by the defendant city to the injury of such owners if they are rights ri then clearly they have because the defendant city has undertaken to give to plaintiff only a per capita electing the mayor and city council of defendant city the governing officers of the water course in which he is interested has p prevented him wholly from any direct voice in choosing a ter masler master or in determining the tax to be levied has determined that whatever tax is established S shall hall be a lien upon his real or personal property and under such circumstances it cannot be claimed that such exercise of the cites control is not injurious to the rights already acquired by the owners if these same acts had been done clone by a private instead of corporation no one would have contended but that substantial rights 12 had been taken away from tho the plaintiff but it is claimed on tho the part of tha city that the legislature has in clear terms given to io the city such extraordinary powers it if they have it must ile bo upon the presumption that the acts establishing 0 tile the rig rights blits acquired by the plaintiff under the tha law have not only been abolished but his property interests forfeited of course unless the language an ua e of the le legislature is upon such a proposition is clear and explicit tile the court will not presume such intention in this case the acts crea creating tini the comp company any of which the plaintiff is a member was passed in 1884 while the general city in corpora tion act under which the city incorporated corp orated and which contains tho section upon b by y tho tha city for its rights to take poses sion of this property was not passed until 1888 1886 it cannot be possible that by the few words contained in a sin single le subdivision of a section of the latter act tile the legislature intended to concise confiscate ato all 0 the rights acquired eby iby the plaintiff under the former act nor do I 1 think that the lan language gnage of the subdivision aub division itself taken as a whole ian can be construed to effect such auch 1 a pir par pose in my opinion the construction of the word control in that r is clearly not that the city shall by b y its 1 own chosen officers either operate the water systems leading to tile the city nor operate the water courses and mill privileges t within the the city but that such operation by the respective owners shall be subject to tile the cites authority and held in proper restraint or check by them so tar far as the taxing in power exercised by the city is concerned absolutely no authority exists for such power under any statute to which my attention has been called I 1 do not intend by this decision to hold that the city may not bo be come the sole or part owner of a stream for the benefit of its inhabitants either by acquisition or by adverse user to or acquiescence by the original appropriator because our supreme court has repeatedly and I 1 think rightfully so held nor do I 1 desire to maintain that the city may not properly exercise police power over all streams either wholly situate within or leading to the city and if the owners of any stream should undertake to so conduct its water affairs within the city as to interfere with the orderly conduct of affairs with in tho the city the authorities could undoubtedly but such should in no wise exceed the limit I 1 have heretofore referred to to wit injuring the rights of existing actual water owners that the mere incorporation did not become an appropriation of the water and water courses leading to the city is clearly evident from the decisions made by our supreme court and cited by both counsel in this case where the supreme court holds that the city may either by acquiescence of the actual owners I 1 or by adverse user to such become the sole owner of such property and yet if the defendants contentions were right there would be nothing in left of the property interests of the plaintiff in this case cas except the privilege to use the water up on his lands upon such to terms as the city council might determine and under such tax penalties as they without his vote might inflict nor do I 1 think that the public functions of the city government are in any way interfered with oven even if the officers of an irrigation ri aaion company should go upon the streets of a city and repair its ditches or place bead gates in the same similar conduct is quite common in the case of common carriers operating trains upon tile the streets of a city in each case the city has a right to exercise a reasonable control over the operation of such property of the company but they have no right to take into their own hands the ex elusive operation of the same but the defend rut city insist chat that if by the statute invoked it has no authority to operate tho affairs of the barton creek irrigation company it has nevertheless obtained such authority by the fact that the majority of the individual members of such company have expressly consented to such control I 1 think that that contention is clearly untenable when the plaintiff and his co associates socia tes in tile the water company associated themselves together they did it under a specific contract framed for them by th tho legislature of tile tho state by which each agreed with the other that on the first monday in december biennially a meeting should be held by the actual owners of water interests in such company at in meeting eting each owner should be entitled to one vote fat each acre of land he owned up which water out of 0 f said creek was being used the contrast contra further provided that these thee individuals vi in that manner and not by a per capita vote should determine the rate of tax which should be t the he law in such irrigation district and that only the water interests of the t he respective members mem bers and not their other real or personal property should be subject to tho the payment of such tax such solemn contract so entered into could not be abolished by a majority mojo rity vote it is true tru e that the organization by a proper vote could have dissolve diss alv ed and placed plaintiff in the same statue in which he was prior to such association but they could not by simple implication orby or by express consent turn over thet thel entire management of the affairs of such company to in an agent be it a corporation or an individual and cease to op arte it themselves refuse to hold meetings and permit the plaintiff or any other stockholder to vote and to delegate to persons not members of their own company pan y the power to impose a rate of taxation for the members of their association I 1 am not now pr prepared to say that the trustees trustee elected exclusively by the owners of any water company might not lot appoint such person a as th the city council of bountiful city ci ty mi might ht name as water master and might not appoint the city assessor and collector as the water assessor and collector but it is is quite q bite clear that they cannot delegate the power of taxation to anagene be it a municipality or an any y person and while it is true that the plaintiff would have to submit to the authority of a majority jor ity of the water claimants and that the majority would have the right to regulate and control the water in such manner as they thought proper and impose such tax as they thou thought 0 lit proper yet the plaintiff has the minority right of having the proper authorities excer cise such power and at each recurring time that such tax may be implored im pored to have a renewed opportunity to cast his vote for or against the propositions offered nor do I 1 think that the plaintiff by any conduct of his has acquiesced q ced in giving to the city any right 0 lie ile has done everything thin short of bringing an all action in 1 I court until this ac action t io n was commenced he has openly declined to recognize the authority of the c city 1 ity to interfere with the water right 0 ho he has declined to pay nhe tax and not no until his property was sold did ile he deem it of su sufficient importance to have his rights judicially determined but the mere fact that lie he had contented himself hirn solf with wit 11 feeling that the actions of tile the city government were unauthorized would by no moans means show an acquiescence in such un unauthorized author iced nets acts the fact that the city lias has properly and justly distributed the water in substantially tile the same manner as the officers theretofore distributed it it is wholly imato rial I 1 have no doubt myself that tile the city have done tile the very best they could fur the community but the question in involved in this case is not ono one sim ply of having doud cloud what is liht rig h t but the question is of having C the power to do nor do I 1 think that it is material in this case whether the land affected by the waters in question are situated in the populated or remote portions of the city or whether the city has expended much or little in the vicinity of where tho the plaintiff lives it is claimed by the defendant that chaos would result if plaintiff should be permitted to succeed in this action I 1 cannot com comprehend elid how any such results res alts could be anticipated because the extent of the issues in in this and tho the decision is simply cas that tha e 1 t the city has no authority without the unanimous consent of all tho |