| Show AN IMPORTANT QUESTION in the district court at ogden october 28 judge henderson rendered a decision in the case of brigham stowell cowell Bf et al vs J T johnson etal eta which is of interest to all ap proprietors of water throughout the territory As AB will be seen by the statement state mentin in the decision stowell cowell Sf sold to ogden in 1882 the right to put in pip pipes and use all of the waters of waterfall creek and half of strongs creek during the winter seison for city uses those pipes were laid by the old council and from there og den has derived its winter supply when the pipes in the canyon would freeze A short time before the old council went out of of office flee they purchased a further right from colonel swan who had previously bought it of stowell this water embraced the same quantity as that sold the city in fact the same water included in the former purchase but it was really the use of it during the summer time which was sold to the city for the sum of the ogden officials began to connect the pipes at the mouth of the canyons for that purpose and that move caused the trouble which occurred at that time the other parties who it now appears by the decision owned eighty six one hundred and sixteenths of the water during the irrigating season objected to such a move which would deprive them of all the water except one half ha strongs canyon the pipes torn out and at the time men kept on the grounds to gu guan sp spot 0 t the decision is as ais fol follow lo 10 0 the complaint alleges that plaintiffs are the OW owners n e ra of od real estate describing it that plaintiffs are the owners of the ther to use for irrigating said land for supplying ogden city with ter all the flow of waterfall cai creek and h half a if 0 of f the flow of 8 ate canyon creek that more thai years before the filing of the plaint the plaintiffs their the decess ors in interest and ors ore jointly constructed es laid pipes a and nd fi flum um es the natural channels of said to and upon their said land means thereof diverted all 1 water or of waterfall c canyon anyon nyon and one half of creek and that for more thao th years last past they have 0 of peaceably uninterruptedly continually used the waters said through said pipes the plaint plains further alleges that thai defendants have such rights it prays for an anji anji tion restraining the defend deceu from interfering with their ril as above set forth and that tha plaintiffs be decreed to be the jaw 7 ers of said stream aforesaid r t the answer of the defend arite wits til nies that the plaintiffs or any wa either of them are the owners rf QU the right to use for irrigating t lands described in the com complaint balut 41 for supplying ogden city ala T 1 water or for any purpose all any part of the two streams rabi tinned except a secondary right rightly irrigate thirty acres of their aada ian land the answer denies in general HW w allegations ot the complaint claims that the defendants defendant Is their predecessors in interest a appropriated apro the water of said creeks more ahm thirty years ago and that they toe yaro acx the owners of the first or prior aw thereto then follows a description of odthe th cree creeks ks and the a mount amount of w a tatt each how bow they flow from tb the e t talus and unite into one under und name of can canfield fi eld creek Cr eelk th T cree continues the tes testimony n y shows th that a t as as 1848 settlers commenced to I 1 io and improve land on the low lower of canfield creek and to I 1 irr their lands from this creek various settlements were made the creek extending along it e for several years and pr up to 1855 and possibly ga som these settlers irrigated lands from canfield creek cree the defendants aro are the successors soro interest of these settlers the lands of the plaintiff am situated further east and on north side of Water waterfall faR es cat creek before it forms its jun with strongs canyon creek awne their lands consist mainly of a ley plateau prior to 1862 settlement had made upon these lands but no improvements made some t 9 mount amount of I 1 irrigating arza ung seems to 1 aw been done an and the water tor for th af joose 1 taken from waterfall and bly from strongs canyon in the plaintiff stowell saco well succeeded Imi interest terest all the settlers who has kled upon these lands and during that year or the ra jact year the plaintiffs went across fe i ravine through which waterfall ak flowed and ou to the high uffe or ground where strong t yon ayon creek flowed from the detains Dt aIns and well up toward fir mouth of the calyon and a ditch from strong strongs Is ayon creek carrying it north and 1 bittle W west est and across the bed of canyon creek onto their jtb ds and from that time have used I 1 tor r through that ditch up to the the pipes were put in as here stated the plaintiffs plaintiff s also A into waterfall canyon and j strutted dietel dieted ted a board flume of con avable ible length to take the waters iam M up I 1 in n the canyon and carry over the loose stony ground i aw where it usually sinks to Z mer inner gro ground und below and conducted ter down dow u through sai baij J ditch and 71 gated the land in that manner aey ey continued to improve and arri he their lands and to reduce their ads do to cultivation from that time i portion of the lands of the plain in the bed or revine of derfall ter fall canyon creek are and porous and the result spreading waters thereon trough open ditches was that ciggs g a sprung up in the lower part ah air grou ground n d and near the june of the two creeks which during j jar irrigation rl aaion season would flow alte A 3 an amount of water and there augment the volume of water in i creek fotis use of the waters or of these t bufes seems to have been known by P ade B defendants f en danta and their successors interest and the use by the plain fc was recognized and atom 1862 td up to fco 1880 and perhaps some oe after that all the parties here lo 10 seemed to recognize each here ere right to the use of water jy held annual meeting sat which irater r master was elected to look ter their joint interests in the meantime other parties had settled ahk X these various creeks and had ade appropriations sub to the prior rights of the parties this ca seand in the meetings they i two classes of claims upon q ie creek one as prior rights right or prim rights and others as second rights they seem never ive determined who the first ap witt tors were and to have them ted i in the order of their HIS a except to lo make two classes of m one of the original or primary proprietors and one of secondary and in these meetings 4 and their predecessor t interest were recognized as be ging to the class designated as enary appropriators at one meet held field about 1880 a resolution was led to have two water tu masters asters representing the first and one 7 enting ee the secondary ampro thereby recognizing that primary appropriators as they rr idd sd them were entitles entitled entitle a to equal 9 and at the same meeting as dwter ster for the primary ampro i W w J pria tors the person representing the plaintiffs was elected thereby designating him as one of the parties who held a primary or original right in 1882 the plaintiffs entered into a contract with ogden city to which it was agreed between them and the city that the city should put in enclosed iron pipes to convey water from strongs canyon creek and from waterfall canyon creek to and upon the lands of the plaintiff naiff and extending from there on to tb the city reservoir and that during the irrigating season the plaintiffs should have the use of said pipes to convey the water upon their lands for irrigating purposes ani and that during that portion of the year when it was needed for irrigating purposes that they the city might take one half of the flow of water of strongs canyon creek and all of the flow of Water waterfall fiall canyon creek and turn it in on their reservoir these pipes were at once put in and water thereafter conveyed through them the immediate result of conveying these waters through these closed pipes was to dry upon the springs on the low aroun grounds ds of the plaintiffs and thereby incidentally diminish the flow of water in canfield creek the plaintiffs plaintiff claim that during all the time from 1862 through the ditches before mentioned they bad actually and as a matter of fact diverted and taken the waters of waterfall canyon crack C and one half of strongs upon their lands and they therefore claimed that they had bad been in the uninterrupted and peaceable possession of one half of strongs creek and the whole of waterfall creek for the statutory period of seven years and that therefore it belongs to them on the part of the defendants it is claimed that they are the prior appropriators and that they have the prior right that the plaintiffs right is a secondary right and they claim further that the waters which were diverted from both of the creeks above being spread upon the plaintiffs laud caused the springs on the low grounds on the lower parts of their land to flow and thereby augment their supply of water and that the change in the use is detrimental to them and is improper the defendants also claim that the change in the manner of the use and the contract by which the plaintiff allowed the city to put in its pipes have forfeited all rights that the plaintiffs plaintiff is have that is that the pipes which are now put in belong to the city and the water diverted through them also belongs to the city and that the plaintiffs have lost all control over it it will be seen that by the contract between the plaintiffs and the city the pa plaintiffs plaintiffs retain a beneficial interest in them that by its terms they were entitled to the use of these pipes as conduits for their water it was contended by counsel for the defendants fend ants that if the city should see fit during the irrigation season to take water down to their reservoir that the plaintiffs only recourse would be to an action for damages and that the water would belong to the city I 1 cannot agree to this view I 1 think the contract is such that the plaintiffs could enjoin the city from so diverting the water and that the plaintiffs retain by that contract their right to whatever water they had before they only changed the manner of taking from the streams stream and took it in a way which caused less loss therefore JE do not think that the plaintiffs have lost their right whatever they may have had bad by this change As to the amount of water which the plaintiffs plaintiff s have claimed and used during the irrigating season and as to what amount of water had been turned from stron strongs 1 8 cady canyon on creek into their ditch the le testimony is very conflict conflicting in it showed that the parties hag had tried to accommodate each other that water astere masters had bad tried to satisfy all persons complaining pla ining to them As a matter of fact it does appear that for a great portion of the time at least one half of the waters of StrOD strong gs canyon was diverted into plaintiffs plaintiff ditch but in this there was no regularity in the seasons of low water sometimes the whole volume of water was turned into the plaintiff miffs tiffs ditch for a time and then turned down the stream for the defenda ts use butin but in all the transactions as before stated the plaintiffs miffs tiffs seem to have been recognized as having a right as an original appropriator ator and ana this commented very soon after 1862 and so continued without interruption until 1882 it must therefore I 1 think be determined ter mined that the plaintiffs have a right in the waters of the these streams screams equal in m time of appropriation to the defendants but the question remains as to what the amount of that appropriation was the plaintiffs as before stated have undertaken to establish their title to the waters of waterfall and one half of strongs canyon creeks by evidence that they have actually had and used it in order to constitute a title by user especially as against persons who are as well prior appropriators it must be shown that the use was open notorious and adverse that is it must be shown that the party made claim to his rights openly and that the other party knowing and understanding what the claim was acquiesced in it or at least permitted the user in determining what the amount in this case is we must have recourse to all the circumstances of I 1 IM the case in the first place the jq point of division of strongs canyon creek was high up in the mountains and at a point remote from the parties interested the teotimo testimony DY shows it was seldom visited by any but the ai the it is true represented all the parties he represented the plaintiffs as well as the defendants and the mere fact that the had yielded to the complaints of 0 f the plaintiffs and turned water down to them even though it may may have continued for many years unless it could be shown that it was brought actually to the attention and notice of the defendants could not bar their rights but in 1880 a circumstance took place which indicates the amount of these waters that the plaintiffs miffs did claim A statute had been passed he fore that time creating the selectmen of the county water commissioners in and for their various counties and gave them jurisdiction to apportion water rights and to regulate them the afie statute has since been declared unconstitutional but in 1880 the plaintiffs made a written petition to this court in respect to their water rights in these iwo streams and in that petition they set forth that they are the owners of the land described in the complaint and that they were the owners to a primary right to thirty one hundred and sixteenths of the waters of these two creeks for the purpose of irrigating the same this then at that time was the claim that they were asserting this petition was signed bythe by the parties who preceded the plaintiff is s in interest and it was sworn to lu in pursuance of that petition the water commissioners adjudged ada budged them to be the owners of that amount of water stud and issued a certificate accordingly and in 1882 this certificate was taken and filed and recorded of course this judgment is not ees but it indicates that at that time the plaintiffs plaintiff s or their predecessors decess ors in interest were only openly claiming tu to own thirty one hun dred and sixteenths of this water to which they now claim to have a title to one half of one creek and the whole of the other 1 think it is but reasonable to suppose that this is the only claim they were making to the defendants ani that was the only claim the defendants supposed they were consenting to when they admitted them to an equal ownership with themselves in point of time therefore I 1 think that during the irrigating season the amount of claim or right to which the plaintiffs plaintiff s are entitled by reason of their adverse use is one hundred and thirty sixteenths of the waters of those streams As to the change of use b by y the plaintiff I 1 do not think that it is a pa 2 matter of which the defendants can complain if the defendants have become the owners of that amount of water they can use it during the time that they own it as they see fit while it is undoubtedly true that while they took the waters and distributed tri buted them upon their lands it thereby aused springs to flow down upon the defendants lauds lands yet they did not acquire such a right in these springs as would preclude the plaintiffs from changing the use of the water they were merely percolating waters and being such they belong to the owners of the soil and they could divert them and make such u use se of th them em as they sa saw w B fit t As to the appropriation of one half of the waters of strong strongs Stio 19 canyon creek and all the waters of |
