| Show AN astounding DECISION salt lake city feb 12 AN 1898 Y government by injunction has beme in the american I 1 e ft trite phrase I 1 rna cular the judicial arm of our I 1 rement system has become potent a manner no not t contemplated when B nution nation was organized the power injunction was vested in courts for e protection of the citizen to preat injustice and arrest the force of vt when exercised against right bof of late years t that hat power has been ended far beyond the sphere which common mind appears to be ite this has caused the wide alde feeling which has found ex lon ip in the words which commence jrr communication by injunction is not the ily form orm in which the rightful au of courts may be perverted junctions eions are issued not infrequently ben the conditions complained of do warrant such methods of priced id when the judicial mind is by bias or is but partly inas to the facts great injustice ittzes the consequence the C care pt pc lence and fairness ta be exercised Nercis ed by the judiciary invoked to stretch forth its tann in order to prevent an inan association or a corpora i exercising those rights and which are necessary to its erty if not to its very exist ach dh extreme e force should never att motion fotion when milder means t aloyed ed in n the support of jus the promo promotion tion of equity sion lalon w was as rendered by bj me ae court of utah a week ago occasioned so much amaze alarm among a host of agri as to call for a protest from ll 11 public while it to Is con it the decisions of courts regarded with respect and hen ien final they zi mut ut be yet it must be admitted dan tt ed are open to public criticism hen they effect a manifest in they ey may become objects of ignation it must not be for that every department of our lluent ent Is for the public service hole e system is a creation of the by y the people and for the people t caal as w well ell as the executive legislative branches is amenthe t PO power that created it finity vinity that doth hedge a king no halo around the judge more smout ut the legislator or the execl oer er when people are hurt they y out no matter from whence the loury injury and when wrong is abed ed it may be lawfully exposed denounced in referring case in point mint then no law is f violated an and d no public offense any I 1 ny one has a right to j from a ruling of a court to its ts errors to deplore its effects 6 voice public opinion as to its ly the general feeling in legal L as well as among the masses people who are acquainted with bete la is that the decision was an pt blunder the sufferers call it to outrage 11 I 1 north point consolac Con consolidated r co 00 some goe time ago sued aued for an lotion ion against the utah and salt company pany the south jordan canal f bany the north jordan irrigation jimiy the city of salt lake and B anty ta of salt lake to prevent anee of a drain ditch which ft been constructed to carry off the hiitt al afa drainage inage and seepage from the if lands do in the ea te rn and tetha parts artis of the county through abher er durst potter decker the he white lake and also the u use for similar B canal running from the of twelfth south street in a northwesterly direction to the white lake and thence on towards the salt lake the complaining company claimed a right to the use of the water from the surplus canal by virtue of an alleged grant from the surplus canal company to the north point canal company the predecessor of the plaintiff for irrigation purposes and also that the lands watered by the system used by plaintiff had been damaged and rendered worthless because of mineral substances carried through the drainage ditch and the surplus canal which have bave become a public nuisance it was contended also by the P plaintiff lain tiff company that ahat the surplus canal was constructed for irrigation purposes rather than for drainage also that the drainage ditch on the west had been enlarged since the time of the alleged grant from the surplus canal company to the north point irrigation company the purpose in view in the planting of this suit was to recover damages said to have been caused by the deposits of alkaline matter on the lands watered by the irrigation system of the plaintiff company the defendant companies denied the existence of any legal grant to the plaintiff and showed that even if such grant had been made it was and must have been of necessity subject to the prior right held by the defendant canal companies the defendants further proved that the special purpose in the building of the surplus canal was for relieving the jordan river of its surplus water in in overflow over flow seasons and for draining lands in the western part of the city and to drain the entire slope of country as far to the north and west as the sandridge and that it was waa built and water turned into it in june 1886 salt lake city and salt lake county joined with the property owners near the jordan river for the construction of this surplus canal salt lake city and salt lake county each contributing about towards it the alleged grant to the north point irrigation company was not legally executed and was not claimed to exist until after the construction and use of the surplus canal the drain ditch from the west was also constructed and used as early as june 1886 and both were made to lad the natural drainage into the white lake the natural flow was from hunter lake into durst lake thence into silver lake thence into porter lake and so into decker take lake the natural drainage from decker lake was into a depression now called the old reservoir re ser thence into a slough then on northerly into the white lake and still farther north into smiths lake the drainage ditch and the surplus canal were used continuously for the purposes for which they were constructed until the application for an injunction was made and abid granted temporarily the defendant companies also showed that the lands watered by the plaintiffs system were entirely worthless that most of them at one time had been overflowed by waters from the salt lake that they were thoroughly impregnated with alkaline matter that years ago attempts to cultivate them hao had proved unsuccessful and the lands had bad to be abandoned that they could not be leached beached because of the of drainage that when pure water was applied to them the effect was to gradually bring to the surface alkaline m matter a t in the form of efflorescence which was deadly to all vegetation also that plaintiff company was charged with a large percentage of alkaline matter that did not come from the drain ditch of the defendant companies that the water conducted to them bv ohp such nuisance as existed was produced by the acts of the plaintiff company itself and that no damages of any kind had resulted to the plaintiffs from the acts or works of the defendants after a temporary injunction had been issued against the defendants the case was fully tried in the district court before judge norrell and by him decided in the latter part of april 1897 his decision contains a complete resume of the whole cause A large number of witnesses had been examined a map of the country affected with the several lakes sloughs drainage dia inage ditches canals canala etc etc had been presented presente ct arguments pro and con had been heard and the judge had held the matter for som somi i time under advisement the court decided that no legal grant had passed from the surplus canal to the north point irrigation company com rany that even if such a deed had passed the plaintiff took tonk its privilege subject to ell all the rights of the defendant companies that the defendant companies had used and er joyed the right to discharge drainage water into the surplus canal for the period of seven years adverse to plaintiff and that this was a lawful use and enjoyment of their own property without negligence or malice there could be no doubt from the testimony that the main ma n feature f e a ture of the incorporation I 1 ra tio n of the surplus canal company and the construction of I 1 its ts c canal an al was wa 8 the drainage d of t the h e we a te I 1 n portion of salt lake city and the land along the jordan river that this chief purpose was known to the plaintiff and that MY any privilege granted to take water from the surplus canal was first arst mid and always to the conditions for which the canal was constructed the court further held that the water accumulated in the respective lakes which have been d was waa not surplus water but water that had come down into them the and the low basin about them f froth springs percolation and seepage from the high lands above a condition inevitable from any irrigation sy dyste that water had bad baen b sen running into those lakes and basins for many years and following the natural drain way kyto to the white lake on to smith lake and finally into the great salt lake it was not water that had run to waste but baat that which had been formed after the prudent and careful exercise of the defendants lawful right ito i to so 80 use it and a nd such as was excepted by statute from the penalty tor for forming pools and marshes n arches that there between drain w was as a distinction oge age and surplus water the testimony showed that there had never been any our surplus plus wa water ter from the defend defendant amt companies P antes I 1 canals but that they had never been able to secure a sufficiency of 0 f water for irrigation pur purposes the only on ay surplus water from those canals passe passed d out sauth of the sandridge and was conveyed back into the jordan river the canal known as the surplus canal and the drain ditch from decker lake into white lake were constructed for drainage to carry off seepage and water from springs and precipitation and not surplus water and the defendants fend ants ts had a right to discharge it into white lake through its I 1 natural drain way and to aid the now flow vi by means of artificial channels the de companies had openly continued the use of 0 f these avenues tor for a period of ten Y years e ar a under a claim of right adverse to plaintiff and it was too late now tor for plaintiff to complain the preponderance of evidence the court said went to show that the enlargement enlar gemert of the drain ditch in 1891 COM complained dialed of by the plaintiff was simply a cleaning out of the ditch by removing the krass grass and vegetation that had grown grownup up and the earth that had dropped into it from the crumbling banks and that the ditch was not made ma e wider w er or deeper 1 i than the original ditch As to the damage from the abundance ab of dele I 1 gerlous matter deposited on the tiffs miffs land the court decided that this yas was due not to water from the drain ditch or the surplus canal but from franj the natural condition of the soll soil and the water placed upon it by the act of the plaintiff and that such nuisance as had bad been caused in the neighborhood of the white lake was brought about by plaintiffs action and this being so the plaintiff could not come into a court ourt of equity and demand an abatement of that nuisance by the defendant that the defendants could not be answerable in damages for a reasonable exercise of a right accompanied by it a cautious regard for the rights of others without negligence and without malice the court dented denied the issuance of the writ the language used by ludge judge norrell was clear and emphatic emi hatic and left no point of the controversy uncovered an appeal from this decision was taken by the plaintiff plaint lIT to the supreme ourt court of utah with the result that fals this court not having heard the testimony of witnesses and of experts apparently ignoring the prior rights of respondents the tile j seemingly not recognizing the purpose and object for which the surplus canal and drainage ditch were constructed and in face of the fact that the occupiers of about acres of tillable land on which are their homes and improvements would of necessity be greatly damaged thereby granted the application of the appellant ilant and plaintiff and issued an order r er for an injunction which requires the closing of the drainage ditch and the dause of the surplus can alfor anything but the convenience of good water suitable for irrigation and culinary cul inary purposes this virtual virtually y throws row these ese old settlers back into fhe e conditions which ch confronted them previous to the construction of the surplus canal and the te draining ditch endangers thousands of acres of farming and grazing land and also public highways and for what to answer the purpose or the owners of land which it is impossible to cultivate successfully for the reasons already stated the interests and property erty of the many are it seems to be sacrificed for the benefit of the few and on grounds so shallow and untenable that the public mind is bewildered in seeking for tangible reasons for so strange a decision I 1 I 1 chief justice zane rendered the opinion which was concurred in by 31 justice Ustice J A miner and justice jacob johnson judge bartch being indirectly interested in the lands watered by the 1 plaintiffs system could not sit on the case that is why the court was eon con here explained there are not hot wanting hints rumors and suggestions gest ions as to the causes which led to such a remarkable remar koble result the de appears to ordinary people so contrary to legal minds so hostile to settle principles of law that theford the word astonishment but feebly expresses the sentiments of the public it is not proper perhaps to express opinions as to motives we can only deal lawfully with facts and principles but nevertheless the indignation that is felt throughout the greater portion of salt lake county over the ruling of the supreme court of utah in this case has to find a vent by some means E and hence this brief explanation the question which naturally aatu rally arises is what is 16 to be lone done bout abbout it the answer Is at present nothing the court that has rendered NIN t tate stran strange ge decision has the last os 11 the people sp seriously af tag rioted ted by it will have halve to grin and icv while at least that ear T tt for a to be endured there a t wrong has further much aeto intia doubt koiv biow ayt at has bas to be bb pressed pr eased and in ea time will show that ju justice ati e at length claim its own 9 and nd that the right will eventually come upper most may be set down as a certainty meanwhile the public ought to know the facts and when the time cornea comes for the public voice to be expressed it is probable that it will be heard in no uncertain tones watch and wait in behalf of the people ONE OF THEM |
