Show UTAH MM LAKE E bip SUIT judge kings decree is modified THE PLASH PLANK IN 1 THE RIVIER salt laste lake parties can put in ha twenty two inches the commissions power the supreme renae court has handed down a decision in the case of salt lake et al ya vs joseph ool col ladge et al the utah lake caf cae e the judgment oi of the loner loer court is modified so 22 inches of plane can toe te put in the river instead of 14 inches which audze king allowed and the commission to Is given more liberty as to the keeping in of planks allowing them to ha be placed back in even avea if they are taken out after oct of each year justice bartch banded down the and justices and miner concurred the I 1 ha opinion it views at length the facts on which the case is b based as ed coming comin down to the point mint in dispute it says the appellants contend that the evidence does not justify the finding of facts on the question or that portion of the decree entered thereon which determines ter mines the elevation at which the plaintiffs have a right light to maintain the now new dam and the number of inches in depth of the now bar an aej other obstructions they had bad removed above the new dam and permanently lowered the bed of the river the finding in question is ia as follows 11 that plaintiffs in the year 1888 1839 and abw abc o removed bars and other obstructions which naturally existed in the bed of the borlan river at the now new dam and at the point known as new bar in the neighborhood of one mile above the dam erected by said plaintiffs in said river and in such demov removal I 1 removed permanent Der manent natural obstructions then in said river above said dam and permanently lowered the bed there of fourteen inches thus ft creasing the capacity of said river and thereby enabling saif said plaintiffs to utilize fourteen inches more in depth ef cf the water of said lake lace over the entire surface there ther of ofin in seasons of low water that raid paid P plaintiff latu tift by reason of the removal of cf said bars and other obstructions on the floor or sill eill of the new cew dam erected by them to the height of fourteen inches above the floor or sill of said eaid dam and no more or greater obstruction to ta the flow of the water in eaid river than were wid eaid bars and other natural obstructions before their removal as aforesaid the floor of sald said now new dam its is found to be six inches lower than the top of the sill of the old dam as dixe fixed I 1 by said contract on the facts thus found the court decreed that the plaintiffs are entitled to at all times keep and maintain planks or other obstructions or the floor or bill of the now new dam erected by them in the jordan river to the height ot of fourteen inches and no more it is ia difficult to see bee by what anat process of reasoning such a conclusion was waa reached counsel conneely Con neel tor for the bave in their brief attempted an explanation of it but to say the least their argument in the lace face of the record and the above finding is far from convincing and is quite unsatisfactory to us here is an express finding that the plaintiffs plaint iffa had actually lowered the new maw bar to the depth of fourteen inches and because thereof were entitled to utilize fourteen inches more in depth of the waters of said eaid lake over the entire our bur fue face thereof and that the top of the sill of the new is six inches lower than the top of the sill of the old dam which was fixed by contract it appears hom the evidence that the sill of the old dam is ia eighteen and a half inches lower than the new bar was before it was removed and the now BOW dam being above and six eix inches lower than the old how can the plaintiff utilize fourteen inches more of water over the entire surface of the lak lake e if they be limited to fourteen inches of obstruction on to top p of the sill all of the now new dam that water seeks its devol is a self evident proposition and thus the sill bill of the old dam being six inc inches his higher than that oi of the pew new the elect effect is to neutralize six of the fourteen inches of obstructions which the decree permits to be placed on top of the sill of the ii new ew dam which practically is ia to allow the plaintiffs lifis but eight inches of obstructions this is eo man erroneous as aa to amount to an 0 oversight ver sight or inadvertence on the part of gf the court in entering Us to decree no noi the views of counsel for respondent to the contrary in conformity with the finding failing of cf facts the courton court ought glit to have allowed twenty in of fourteen inches of obstructions to be placed on an the top for of the sill of the new dam such would be the inevitable result from the finding of facts quoted but the appel appellant lanta insist that they dredged the river and lowered the river river bar more mere than fourteen inches that thi facts found respecting this point are not such as the evidence wai ranted and that they are entitled io fo maintain in the new dam at least twenty two inches of obstructions upon careful examination of the whole evidence we are bound to admit the correctness of this position pasi tion the rh e witness doremus Dorc mut who made the original arriey of the river for the purpose of settling the controversy between the interested parties testified i 11 1 I can put an obstruction upon th tb floor of 0 the new dim dam of feet before I 1 will obstruct the flow to any greater extent than the presence of the new bar did c obstruct it the difference in elevation between the floor of the new dam and the top of the new bar is feet the top ol of the bar being th beeber according to the further farther testimony of this witness when the contract was made the difference between the present sill of the lower dam and the top of the outlet bar at the lake was two feet and three inches the witness mcallister testified 1 I superintended super intended the work of dredging dRIng was waa there frequently at the dam while it was being constructed and three times run ran a line of levels so ao as to mate make sure it the upper dam might be maintained two feet above its present elevation without retarding the flow of the water any more than tho the natural obstructions would have done it if they thay had remained in the river and in tho the bar at the mouth of ai the lake the tha witness young sai sah 1 the tha channel is sow now practically ay 1 4 feet deeper than chaa appears from mr dore maass notes defendants witness searles testified at the lowest point which he could find on the inist bar the twenty two inches of boards bards would ba about one quarter of an inch higher than the tha in in let bar these witnesses are experts of acknowledged skill and large experienc as hydraulic engineers and from their te teatime stimmy my as well as aa from other evidence in the record it is to sea how twenty two inches of obstructions a 0 a with the natural level leval of the he lake aa a it existed before the dreda arede cag of the river and the building of tte tie now new dam or at the tims time when the con tract was entered into by the parties 0 this controversy it is clear that tt tf e contentions of the aDvel appellant lants on th tb a point is sustained by such a preponderance CO of evidence as will justify us in directing the court delow to correct the fin finding cling of facts and decree so eo as to permit the tifis to maintain permanently without interference on the part dart of the commissioners or the defendants twenty two inches of obstructions in the new dam and it if the tha practical operation of this should overflow ovar flow any of the lands of the defendants as is predicted by their counsel then such sich misfortune must be attributed to the want of evi dence to show the facey fact toe other point m dispute is ia that re relating latine to the authority of the corn com mission judge king decided that I 1 it the said commission order the removal of the planks or other obstructions a after the first day of october in any 5 3 earp eare the he plaintiffs shall not have leave to re place the same until the fifteenth day of march of the following year vear nor at that time unless the tha commission shall so decide the supreme court quotes quotas the contract and says we conclude that the tha appellants contention as aa to this thia point must also be sustained and that the anding of facts and decree in relation to this question qi estion must be modified so as to authorize the commission to replace additional obstructions str actions in the water way of the dam before the h day of maran in any year even if they were taken out after the lt day of 0 tober 11 |