Show astounding DECISION I 1 salt lake city utah february 26 1898 c C communication 0 which appeared columns recently discussing oa wounding astounding decision rendered tite ge zane in the case of the canal ale in salt lake county has ob some oine notoriety and some corn com tamn the salt lake press the to the first issue of that bright Sv moK sent weekly supports the post M in the communication which in the news but the salt makes the following edi remarks on the subject nhe indecent personal attacks being noon judge zane in the matter of cent canal decision causes one to what the assailants would have mi aey 7 really want the doctrine es aed in utah that a canal of pure used deed for culinary and irrigation can with impunity be denied J by a subsequent enterprise hatt to 10 the idea it is one that the bof of utah would find insupportable calamitous there was no new doe doc 6 declared in that decision as some fend an aa the purpose of basing their us personalities but merely ret restatement ement of an approved doce of f the courts of western states abke e cases A free people should accept with equanimity an it abusive the de of their courts especially their of last resort it t is ie meant in the foregoing by swant Wae cent personal attacks and scan wow to is difficult to dis dis tar seeing that no personal attack of et kind appears either in the com M 1 i to the news or the com vata of 61 the bee it cannot be fairly atz MOSs that the decisions of courts are open to public criticism especially when esy we ge utterly opposed to the facts on OB which amb such decisions ate are supposed to baand baaed ba aed the notorious eight to feea decision of the supreme court ece ab vank united states although now 1 I age to is commented upon jiahe the nation in no gentle lan ian orbr 1404 14 even its years do not it any respect in the minds k f AI of millions of the american people the decision now under discussion is no more exempt from public comment and newspaper discussion than that the tribune wants to know whether the thousands of persons injured by the canal decision really want the doctrine established in utah that a canal of pure water used for culinary and irrigation purposes can with impunity be befouled and ruined by a subsequent enterprise that question betrays a total misconception of the whole matter in controversy and if the court based its decision on such incorrect premises it is not surprising that the order was issued against which there is so much complaint it is ft not the doctrine declared in the decision that k at is criticised criticized it is the assumption ot a state of affairs which the testimony before the lower court showed had no existence that causes so much amazement and dissent it is very easy to understand how a court could enunciate legal doctrine and yet by a misapplication of that doctrine through a misunderstanding of the actual facts perpetrate an injustice to the surprise and irreparable damage of the people interested v it must be remembered that judge norrell who in the district court rendered a decision which the supreme court has overruled had before him not only the facts and arguments presented on both sides but also the witnesses on whose testimony the facts were arrived at ile he thus had personal opportunity to investigate thoroughly the circumstances and conditions surrounding the entire case while the supreme court had rio no witnesses before it and therefore could not as well determine what was the preponderance of evidence as could the trial judge now the question is did that testimony show that the north point irrigation company had a canal of pure water used for culinary and irrigation purposes which was befouled and ruined by a subsequent enterprise ter tei prise no the proofs were clear and positive that the surplus canal from which the plaintiff company claimed a right by contract to take water was constructed for the pur pase of carrying off surplus waters that inundated the southwestern por fops s of salt lake city and that th the drainage canal was also constructed twe f for the express purpose of draining i 1 the lands lying in the western and southwestern portions of salt lake county it was for this reason that I 1 ake T ke city and salt lake county as corporations each contributed the sum of I 1 ex mayor armstrong testified to this e effect andallo and ond also that the intent and pur pose of constructing the surplus canal i i was also to carry off sewage from the city ex judge elias A smith flad that the investment in the drainage ditch by salt lake county was to relieve the lands above and adjacent to it of surplus waters and of drain draining ng a chain of lakes whose natural I 1 flow was into the white lake numerous witnesses testified to the same facts and it is a matter of public notoriety that the surplus canal and the drain ditch were constructed at 1 considerable cost for these special 1 purposes and that they were so used the drain ditch in may and the surplus canal in june 1896 judge norrell so decided as he was bound to do with the evidence before him he decided also that the use of the surplus canal by the owners for the drai drainage nago of lands along the jordan river as expressed by the articles of incorporation is a reasonable use and enjoyment of the property and one as to which the plaintiff cannot be heard to complain because it took subject to all the rights of said owners if it were otherwise then plaintiff by such action as this could and would defeat the plainly expressed purpose and intention for which the owners of the canal expended their labor and laid out their money the plaintiff company claimed a grant to take water from the surplus canal under a deed dated december oth 1886 the validity of that so called grant is disputed by the defendant companies but as judge norrell decided if the alleged deed and grant were valid it is clear to the court that plaintiff took under and subject to all the rights of the owners of the surplus canal so that instead of a canal of pure water for culinary and irrigation purposes being befouled and ruined by a subsequent enterprise the facts are that a canal constructed ted primarily and used continuously for drainage purposes was sub tapped by a company the successor of which now appears as plaintiff in this case and claims that lands watered by its system are da dam th I 1 I 1 aged by mineral deposits from these waters thus the facts are the very reverse of those set forth in the tribunes query and if the decision of tle the supreme court wail was based on similar misinformation it is not entitled to be received with that equanimity which the tribune the courts apologist claims for it I 1 the truth is that the lands watch I 1 it is claimed are damaged by the water flowing from the plaintiff companas comp anys system and obtained by it from the white lake and the surplus canal contain in their own composition tine the deleterious substances which render them unfit for cultivation this wax was proved beyond a reasonable question by the testimony of reliable witnesses who attempted their cultivation as long ago its as 1860 when it was found that the first year a fair crop could be produced but subsequently the efflorescence became worse and worse until nothing could be produced and the lands were abandoned as not being worth the government price it was shown that the application of pure river water aggravated these con editions dit ions bringing 9 to the surface of the land the mineral substances with which it was impregnated and there being no means of drainage there waa w no remedy for the evil these theme facts were testified to by such unimpeachable witnesses as A P F doremus geo ia B wallace walter brown james T cochrane ben Harmon Willam spicer william crowther fred robert hazen william langford etc corroborated by such competent chemists as professor jos T kingsbury and professor the strong remarks which have been made by persons who know of these facts are ara not surprising when it to la known that the defendant canal companies had the uninterrupted use of the drain ditch and surplus canal for the purposes for which they were constructed for at least ten years yeam and are now required by a decision of the supreme court to abandon such use and to fill up the drain ditch for the benefit of a few individuals owning worth worthless leas lands and who want to collect damages from the defendant corn cont bantes as is believed by many to compensate those few individuals for an unfortunate and unwise investment in worthless acres acme there is no desire to attack any judicial cial dignitary or tribunal or to indulge in scandalous loys personalities but the public mouth is not to be muzzled and the thousands of bona fide settlers who feel outraged by the latest decision on this matter are not to be silenced i by any pretense of exalted sanctity designed to screen a branch of the public i service from deserved censure the decision of the supreme court affecting the rights and property of a gre great a t num mass of the farming community and of rest reel dents of this city is of such a character as to render it not only astounding and disastrous but to cause hosts of people to question the causes that led to it and to express opinions which it would not be wise perhaps to repeat in print but the end is not yet justice may wait but in time it to Is bound to come uppermost in behalf of the people ONE OF THEM |