| Show OF SATT creck the supreme court dp delivered livered im fin pinion nion wednesday in the cw case of jphn john hague ague ve VB the nephi irrigation co appellant affirming the judgment of the lower court proceedings in this case arose over the use of waters of salt creek at nephi hague claiming a right to it tor for manufacturing purposes and the defendant the right to divert a portion of it for irrigation durpos purposes the history of the cas is a an inter eating one it shows shown ti that t th the e town of nephi was waa settled in in I 1 1961 I 1 ID by y nip nineteen eteen families and the year ceaf f following ol 01 lowing the waters of salt creek was diverted from its natural channel for the bene icharles charles baer has haa filed a damage suit against the national bank of nt fit of the settlers in 1862 a man named baxter hagues predecessor in interest built a grist mill locating it on the stream above where water had been all the points diverted the next year trouble was had with the indians indiana and baxter was compelled to move his mill into towns town whdeh he did locating it on a ditch in 1864 he reconstructed the mill and obtained a right of way tt to carry the water lter to the mill in the me mm race was as moved from the flitch and connected with the stream hague bought the place tn in and at that time two ditches used for irrigation and culinary purposes had been taken out above the mill but the water to supply it was permitted to now flow down the stream and after passing through it was diverted and used tor for tle the purpose or of irrigating a large body of land for past the defendant imi several years etian ration company refused to permit I j 1 hague to use the water and also as 1 sorted its rl cht to change the place of and alid to divert such water above vine use the he mill as it saw fit and whenever it choose to do so no this of course ave vented the operation of the mill when 1 hague suit judge higgins before afore whom the case was tried decla i ing in ff hagues egues right to the waters for j mill purposes the insisted that plaintiff I 1 had failed to set out a cause of action in his and that its demurrer ti to the be same have been sustained W the e court fads bo however wever that owner ower i ship shap anva invasion i io of right and injury were jelv and distinctly alleged if ohp th a more p ciale ord tid alle allegation tion of 21 ship the ellirt says 4 I 1 aj 1 aps fps proper 7 aks was by pleada pleading having W this it if C can 1 not now be beard k athi he object writ intent say sva atte UT ui AISI jacun jhoo water must be to apply it to some useful purpose and if by means of ditches more to is diverted than is necessary for such purposes the excess cannot be regarded as a diversion for a useful purpose for as matter f fact such excess merely runs to waste ana and its diversion cannot result in a vested right if therefore A who owns and intends to irrigate but one acre of land diverts all the water of a natural stream which is sufficient to irrigate two acres he obtained a right only to sufficient water to irrigate two acres and B who also owns an acre may appropriate the excess if in this arid region the law were otherwise it would be a menace to the best interests of the state as well as to its citizens because it would enable a few individuals or association of individuals by diversion of water in access of use to greatly limit the area of the public domain which could be cultivated and thus deprive the state of its revenue and citizens of homes within its borders the intent to take and appropriate and the outward act go together it if we concede that a man has right be mere priority to take as much water from a running stream as he chooses cho osee to be applied to such purposes as he pleases the question still arises what did he chose to take and this depends upon the general and particular uses he makes of it if for instance a man takes up water to irrigate his meadow at certain seasons the act of appropriation the means used to carry out tire the purpose and the use made of the water should qualify his right of ap to a taking far a specific purpose and limit the quantity to that purpose or to so much as aa necessary tor for it orton vs dixon 13 cal 34 the court also cites another case reported in 37 87 cal which says the doctrine is that no man shall act upon the principle of the dog in the manger by claiming water by certain preliminary acts and from that moment prevent others from enjoying that which he is himself unable or unwilling to en joy and thereby prevent the development of the resources of the country the appellant cites other errors in the proceedings but the court finds no reversible error and affirms the lower courts judgment justice bartch delivered the opinion which is concurred in by chief justice zane and justice miner |
