Show WATER CASES the opinions rendered by ande jadd IN CASE OF CITY VS JAMES HOLLEY and nf william R smith ct al vs jonas we are able to publish the opinions opi niona of judge judd rendered in the wate cases of william 11 smith et al vs jonah Phillip 9 and springville Spring ville city VB james holley they were both rendered on wednesday the following is the opinion of the court in the smith va case in he district court of ahe first judicial district territory of utah lounts of utah GENTLEMEN I 1 believe I 1 have gone oyer this case sufficiently I 1 believe it is conceded eliat jonah phillips land ia within the corporate limits of spring ville 1 mr booth yes sir I 1 do not find it necessary to go over this matter again I 1 have read over phillips testimony very thoroughly and hi testimony while it is not very clear w the point it leaves it reasonably clear that about tareo years ago he had about fifteen acres of land under cultivation but since he and the balance of them have missed the amount of land eo far and it turns out that he has got about thirty eight acres under cultivation I 1 have concluded cot to charge him with all of that discrepancy but vill try to arrive at a settlement between these parties on equitable principles and justice and as I 1 said content myself with conclusions entirely in this caso jonah phillips will have one good irrigating ri stream for sixty hours every sixteen days of course he can wate r one acre of land or a dozen or a hundred and fifty if lie chooses with it but his use of that water so far as limes are concerned will be regulated by the water master that has of dry creek under the direction of springville Spring ville chiy now yon gentlemen understand do you that tho times when he shall take it is to be regulated by the water of dry creek appointed by springville Spring ville just like 1 he other owners on that stream before judge judd rendered his opinion in the springville Spring ville vs holley case 1 he following colloquy took place between the court and mr geo sutherland for the plaintiff mr sutherland first reading from the ordinance book of the city of springville Spring ville by the cobitt the proof convince me here at all that aliis land is within the corporate limits of spring vilie mr sutherland as 0 but that tends to show how the water has been distributed down there the introduction of that proof will show that the city water master of springville Spring ville is an officer appointed by the corporation and that he is compelled to give bonds for alie faithful performance of liis duties and if he damages anybody lie has pot bis remedy by the court I 1 see if anybody is damaged bv reason of the distribution f the water he has got a remedy on tho bond mr sutherland we make a further point on this that all these people a reat many people some three thousand in number uso alie water from this stream the streams that go to make up hobble creek and that they have all acquiesced in the right of this officer to distribute thu water to them and the water master of the city being under bonds it would seem to us that there is no reason why mr holley not be within the regulations of the water master the same as any other one on that stream we think ho is fully protected alie bond water master protects him by the court if the proof clearly showed that his land was inside of alie city limits then there would be much force in your suggestion but the proof deemed to the court to fail at that point and that we have got to go back upon original principles as far as the right is concerned now I 1 think that your theory of this suit is probably the correct ons thai these parties who are interested here are before this court in the person of the city of springville Spring ville because they an within tha city of springville Spring ville and un bat to control and regulate this wier buil that statute is a proper or and 1 have no doubt a valid mr sutherland W t annot see any reason why it ia of statute and we say that it nesbe city on a trustee the of the ditle ent str of j j boundaries w not onla its duty but it oil lit 0 o be bv law compelled to put them under heavy c pens cs of litigation in order to several rights the courts but this man as I 1 aay e proof doea not and to convince the court that he is within alie city limits and therefore we have to settle that matter upon ahe original principle now that ia the view I 1 take of aliis case in the holley case mr sutherland claimed that even if holley should be outside the city that tho court might in order to preserve an equality of amon all the tenants of hobble creek appo nt tho vater master of as a perpetual commissioner to carry out alie decree of the coouyt fixing hoi leys rights the court then proceeded to deliver his opinion as follows now in the case of springville Spring ville v holley mr holly will have in like manner as mr philips one good irrigation stream fora like time of sixty hours out of bartholomew creek during the arri of and alie wa t armaster of the city of is by this court made commissioner to fix the m a and regulations when he shrill nave the water to 10 regulated alon with other tenants in common on bluit creek and lie is lo 10 have aliis every sixteen days during the irrigate irrig ati season so far as the days and honra he i to tykp it he shall hp reen i this commissioner appointed thy the court who for convenience shall he the astr of that creek appointed by the city of springville Spring ville for hobble creek now gentlemen draw those degrees here are the plats and things so eliat there need be no mip talco hereafter about the regulation and control of this water so far as alie costs are concerned in the philips case smith in that case will pay the reporters fees and philips will pay the surveyors fees neither party to have costs in the other case the reporters foes and alip surveyor fees shall be divided between holly and and neither shall have costs mr sutherland when you say surveyors fees I 1 suppose you mean the ex apenae of tah surveying on tho land in this case bai the court well it 13 the expenses of alie surveyor whatever it was that sarith is to pay and philips s to pay alie reporter jn the other case the expenses of tho reporter and surveying are to be equally divided between spring ille and holley mr what about the expenses of the court mr clerk liow is that have you any more clerks fees yes by the cowl well the party must pay them by whose instance they occurred neither party is allied any costa I 1 think this ie a caad where neither party should be allowed any costs let each party pay hia own in other words it is a just decree where neither parta shall recover costs of the other and of course that leaves him to pay what he owes ir thuman so far as we are concerned we are willing to waie special findings mr sooth oh yesa are e by the court well now insert gentlemen in tooth of those decrees eliat it is not intended by the court to make any dechee as to the rights of parties in the future if by reason of any arooth should be a general diminution of the stream this decree is made upon the basis of things as they now appear to the court insert that in the decree in both cases mr reporter let the record show that findings of fact are waived by both parties and that the conclusions of law will be inserted in the decree |