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Show NAY CONDEMN WERB1GHTS Eminent Domain Law Is Ample. Valuable Point Against Octopus Oc-topus Made by Judge Christopher Reed. Ho Also Wants to Know Why Important Im-portant Features of Former Franchises Fran-chises Aro Omitted. Salt Lake City, Utah, Marph 27, 1003. Editor of Tho Tribune: As I was tillable till-able to participate In tho meeting at tho Grand theater on the night of the 20th Ihst., owing to a severe cold and consequent conse-quent hoarseness, I dcslro now to contribute con-tribute my mite in tho present controversy contro-versy between the people of this city and the Utah Light and Railway company, upon a point to which no refcrenco was mako by any of tho speakers tit the meeting meet-ing on the 2Gth. I understand (I may be misinformed) that tho present controversy has proceeded pro-ceeded with a concession that if tho city shall need to complete Its new water system, sys-tem, the water rights of lho Utah Light and Railway company, then tho sumo can only bo obtained by direct purchase by the clly, at figures fixed by the railway company, or by tho granting of an additional addi-tional extension of tho company's franchise, fran-chise, and that the latter Is thought to be the cheapest method whereby to obtain for tho city such water rights, In other words, that there Is In this State no law of eminent domain by which the water rights of tho company can be taken at a fair appraisement under u proceeding to condemn the same. Why It Is Misunderstood. I think that this erroneous conception Is due partly to the fact lhat during tho last Legislature a bill was Introduced In the House of Representatives (which fnllcd of passage) whereby tho city was authorized to Institute proceedings to condemn water rights. In other words, a doubt, at best, was existing In tho minds of some that as tho law now stands there Is In this State no right of eminent domain by which tho wator rights of the company can bo extinguished, and hence such a bill was Introduced In the Legislature Legis-lature to cover such supposed defects ln the law If this erroneous Impression or opinion Is really entertained by some, then It should bo eliminated from the present controversy, so as to mako tho Issue clearer. I therefore say. unhesitatingly, after a critical examination, that tho law of this State has made provision wherebv tho water rights of tho company may be taken. Under tlfo law of eminent domain, do-main, sections KSS. 35S3. 3550, tho Revised Statutes of the Stato of Utah, amply provide for the extinguishment of the water rights of tho company. The water rights of-the company, under all authorities authori-ties and text writers, arc a mere easement, ease-ment, and section 3?0 expressly provides that an easement may bt taken by virtue of the law of eminent domain, when taken for a public use. Water Eights Are Easements. Weler rights at common law were ad-Judged ad-Judged to be easements, and the Supremo court of Utah, In the case of Beaver Irrigation Irri-gation company against tho cltv of Og-den, Og-den, reported that water lowing In a natural stream Is not subject to ownership owner-ship so far as tho corpus of the water Jo concerned, and that "the right to use It M a hereditament appurtenant to tho lund." This is a clean-cut statement bv our court of last resort, which leads to the Inevitable conclusion that water rights, under the law of this State, aro a mere easement, and for the taking of which, at a fair appraisement, the law has made ample provisions in the sections heretofore quoted. The fact that riparian ownership as existed at the common law does not prevail pre-vail In this State, In no way modifies the conclusion which I have reached, for the reason lhat water rights in this State are subject to what law calls "secondare rights;" that Is to say. no one can subject sub-ject his water rights lo an absolute ownership, own-ership, but that tho same may be participated par-ticipated in by others In the manner pointed out by the statutes of this State. The law of riparian ownership docs not apply in this State, so far as it tends to prevent tho diversion of water 'or domestic domes-tic or Irrigation purposes, but otherwise the principle of riparian ownership governs gov-erns In this State, hence water rights arc-In arc-In tho ver nature of things, with the single sin-gle exception Just stated, as clearly casements case-ments In this State, as at common law. Important Feature Omitted, Aside from the presentation of this feature. feat-ure. It might bo well to call -mention to the fact that an examination of tho proposed pro-posed new franchlso of the company will reveal that It entirely omits thai Important Import-ant and necessary feature Included in all tho former franchises, whereby the city is given the right, upon a proper notice to tho company, to repeal or revoke tho company's com-pany's franchlso. for sufficient cause With this omission in tho present franchise, fran-chise, tho city would be at all times at tho mercy of the company, so that tho query might properly be made, "Whv was this omitted?" CHRISTOPHER REED. |