Show ala U UK E is bilven if W T Y K T DA M A 4 E S judge ericksom Erid ksen renders enders K deci casl in S water pr litigation ditl ga ol 01 tion case hon han ferdinand erickson Ericks cn at manti last thursday rendered his decision in tile case of george 0 whitmore against the rio grandc grande western railroad and the utah fuel company which has been in the courts of this county and the state for several years the ile plaintiff asked for two hundred and fifty thousand dollars damages tho deci decision aon of judge Erick ericksen seti awards him less as than four thousand dollars the nie case being of more than unusual inter eat est especially in carbon county the advocate gives tho the decision in detail somo sonin of the tilt ablest legal talent in the state has been employed on ott both sides of the case while thousands upon tho thousands wands of del dol lars has been spent for witness fees to say nothing of attorneys fee fees 4 and incidentals pertain pertaining irig to the litigation 0 each E ach side lias has six si months as we understand it in which to tile an appeal the attorneys for the and the defendant corn com panics not inot being within reach of the ilia advocate it is impossible to state what further action if any I 1 is to tn bo be taken in fit the district court of the seventh th judicial dietrict Dietr lct or the tile state of county of carbon george eor geC whitmore plaintiff va 8 utah fuel company nut and tho the hlo RIO grande western hallway company defendant defend tints decision of tho tile court cou artio to tho the abobo entitled tItled cause rendered in open court ut murial san county utah jun enry 11 ll looe IWO THE count COURT vii suit was in arlly brought to enjoin def from froin taking water from ow ertain wella wells alleged to havo been excava excavated tid by them and aleo also from dhert diverting ial by means of 0 certain excavations 1 aliens tho wai ter fron from nn un underground channel which it was alleged supplied certain springs idich formed a part of tho the source of supply of grassy trail cecek all at sunn side carbon diun tiun ty uth tho the cavi t time on for trial origin ally in october A D and tile court found tho tile issue issues relating te to tho the ulle goti wrongful overston Hv erston of the tile water berinti in in favor of tho dc fend ants and dismissed tile action Theto upon plaintiff appealed the ens case und on october 5 1903 tho tile S 8 piche court an irined the trial court in die tile plaintiffs second caubu of tich in lit but reversed it in lit flis missing tho tile fir it pauso cu f notion and anti remanded the causa avith directions to the lower curt court to enter judg judgment mont in favor of plaintiff for the dai indRe which ho he tins sustained stained eu by the liver diver elon sion ortho of tho of the lower drbul of spring springs by tho the defendants if howe however ter the tile court Is unable to render judgment on the evident c latro intro duritt du oitt to reopen ahn th caso for tho tuli tal tup lup t further testimony on this tills branch of tho the anae tho appo liate court lu in discus giul thin a phase of tho the cago 1180 of the following fallowing lan jan guage it from tho the aci acord ord that tho tile source ef of supply of water for oramay trail creek has bet 1 in destro destroy Y cd ed and that it would be impossible tor for the defendants tr V tho the water ta beneo ho hia tied led to re cover the tile tio howa to be tho value thereof in lit with tilt maDa tho boint thim this cause was reopened and came cam on oil for trial on oil september septell ir 5 1905 and haq thie time tri tried upon the theory of ascertaining fiorit the ef water take taken u hy the defendants defenda niR froni front plaintiff and second the balut vf ut the fa taken after taking for nv df daj j the cause wae was continued until october when the trial wai wac again etl ar avo daya days oc occupied cupItA iu in bearing bf evi denom and anti listening it arguments by t aull 40 ID in submitting thy the caa up for deila ou on connal oti usel for both par partite tit lu in open opell court reque requested steil tho the trial judge to inako a it tour toor of inspection of the dt at sunn surin hie de thia this ho lie agreed to do to till on october 5 accompanied by per scant representatives of tho the litigants for tho purpose of nequa inting himself ns its f fully ully aa as possible with tho the truo situation of tho the matter in controvert controversy ty he lie visited plaintiffs ranch pipelines ditcher ditches and pumping plant olao also the welle wells trail trai creek and all places en on the at sun ayalde any information could be abt obtained tined bearing upon tho the case ease nod and tour four hours were also in examining the underground workings of mino no I 1 belonging to the defendant utah fuel company vin pany tho the weirs constructed for tho the measurement of water coming into eald said mino wine acro carefully inspected and tho the wa in tile main measured as lowing flowing through said ilia V of the prow dings had at the former trial of this ca causo use as heretofore referred ferrel ru to has been carefully read the earne same having been offered and unit rece reveled led ns As evidence in tho tile caw case at ill thi Is he irlue and anti the saute considered in connection with the testimony taken at tit the lato late trial the testimony bearing upon tho tile points nt itt isido Is I 1 con conflicting flitting and uncertain certain ild 4 not duo ta any willful neglect or fault of the tho parties but because of or the pec ulitz condit condition our arid the tho great in arriving at tit the exact facts it vua as impossible to get proof of that posit lNe and anti con vi vinellia vinci tig that courts so 0 o much deblec IL ing the involved lu lit tills case aae tho court will take into consideration all the testimony received so far re it can call be reconciled in v aith ith co inclusions formed it in making ot t thorough of tho the prom IMS ise the cited by y counsel in their ible able arguments bavo have been carefully read and tho the principles an 4 bounced by judge in the cla borAto und anti able opinion in the thoc case aee of allexon a Chit udler found in it 11 impress tho tile court with great boreo in de deciding t case the learned judge in lit that cas aay says since from tho the natum of tho the 0 aw the damage cannot bo be est estimated livia with certainty and anti then them lt h n risk of riving giving by one coura of tripti les and by chii otheir more thau than a far ir campen batlan to say ay nothing of justice doen doea not sound policy that tho the risk should bo be thrown upon the wrongdoer instead of the th injured party holevar How evar thie this question que atlon may be answered wo we cannot resist tho the A conclusion that it ie Is better to run ft a slight riak risk of giving gf ving somewhat more than compensation than to adopt a rule vhf eh u under the circumstances of tho the case wilt will in all rea probability preclude the injured party from the recovery of v large proportion of tho the damage damages he has actually sustained from ahm injury though tho amount thus excle ded tied cannot be estimated win will accuracy by a fixed and certain rule so then having in re rc id the testimony and tho the law applicable thereunto thereto to I 1 fand a that plaintiff and defendants defendant are the evv owners ners respectively of the lands as claimed and described in the pleadings b tl tt at lung long prior to thu the year 1899 1893 plaintiff bud had appropriated for irrigation domestic cu cul laur linar and stock raising purpose s all tho the waters of grassy trail creek in the county of carbon state statue of utah Q T h at at a t tho the time of the tile doing of tho acts complained of b by defendants and for many oare cars prior thereto to plaintiff was beneficially fici ally using all of tho the of wild grassy trail creek for irrigation domestic culinary and anti stock calsing purposes ece upon his lands or ranch described in the d that said grassy airall creek is o a 0 stream of water baing its in lp thi the far above plaintiff ranch ud ie Is formed mostly from melting molting shows in the spring time ti metud nud from rit niall producing fre during tho the summer and ml months and anti this is the miter witter upon which plaintiff hits almost wholly relied for the irrigation of hia his crops e that prior to the operations of the tile defendant the attah fuel company at suon side in working its it coal att e no I 1 there was aas in the bed or elin unel of said grassy trull trall cr crek eh a group of small springe springs at a it point about two miles above plaintiffs farm from which some water found ita its way into said suld grassy trail creek and at several points above and bolow this group of springs water rose u in tho the torn to in of springe springs or seep in tho the natural channel or bed of bald creek crook but tho water from theo various sources ws fluctuating in quan city and moine somewhat what uncertain in fit it its flow so that when not with tilo t L h or freshet batera ebore acro times when ot tho the heat of summer or the tile frost e winter the said water will not reach linda f rant upon ranch HI at a point about 1700 feet south nod and wt wet at from roll hn hi dwelling house corrals and awl feed feld yards ards there la Is what is I 1 known knori as Ic le spring a grup of arn small 1111 springs from front cheh it senall stream of perpetually how and the same i 1 utilized by plaintiff for irrigation doin ottic culinary arid 1 stock raising purposes ms n hr lit beetris ne ceory or expedient g that in 1905 1901 ii lucern ti tl talle lle bad nil produced two fair crops of hay and from sonic some arnall parcels light third crops had been cut and there was good pasturage upon the I 1 I 1 filda 1 that had been cut twice during luring tho the season tho the eland stand ap pearce to ix bi fairly cooil at tho the api r ends of thra different parcels gro growing log less as a s tho the lower ends thereof win wire approached judging from the st stub lb ble the root roots appen appended red to be ie in a as hardy a it condition as at ordinarily found upon illar land lunda here hero irrigation 0 Is done dome principally with hush flush water witter during the early part of the grou growing lug from an examination or tho the g korden ardett A and anti orchard ori ort hard hards no eli elizell lell 0 showing suffering from froin water ta va no noticeable As nearly its n could bt ted 11 ft oin 14 close and careful inspection without measuring it 11 thare wat was almost one fourth of a second foot of water entering th pipe at t the ping 9 plant at the head of the main pipeline from front the tile flow of the creek nd spring nut aud ni nt a point whore when the pip ellue uis bruen ri it bhart dibranco dib tanco abbie plaintiffs ranch the same quantity of water was coming atoni the tile pipe had tho the pipe not been broken tills how ot of water would hao reachel il tho tile ranch thee those tlona were made when viewing the pren ilses it that the deren defendant dantia havo have dalcou foft a and anti delori led plaintiff of tile water which formerly supplied ahn group of springs then ri rising in tile natural channel of grassy trail trait brtek at a point about two miles in lie above plaintiffs land end the bald said creek passed through what Is I 1 now tho the t va of and that the water go taken was as plaintiffs property i tent the quantity of waters taken lv sa I 1 defendants from plain tilt till Is one bittl of 0 it cubic foot per s cond of time I 1 that ihfe dut of water on plain on page 41 WHITMORE 15 damalfi from pace 1 described in the pleadings loga 1 and upon which the water taken was formerly used ie is seventy fi ue te to tho the second foot k ahat the value alue of the water so taken by said defendant defendants from front the plaintiff Is 75 por acre or r in nit all 1875 1 I 1 that elal n tiffs branch pipeline together with itt laterals literals late rals was con strutted ted for tho the purpose of coave wavering ing to hie his land tho water howing flowing from the group ot of springs found to hove have bee diverted and anti taken by de fondants fond ants and was therefore appurtenant to plaintiffs farm and constituted a part of the value thereof and by reason ot the tortious tort lou ioui acts of said defendants eald said branch pipeline has hai been destroyed and valueless in that the value of the tile branch i j pipeline together with its late literals lat erula rals is I 1 1 n that lina beau damaged by wild defendants in the tile sum sulu of and lie he is entitled to the legal rate of interest on said hum from front the dakof august A D itoi 1001 that being the date of the of his ilia suit wherefore plaintiff Is 1 entitled to and ie Is hereby oil dan maninges inges against defendants defend antH in thu tile sum of with the leg il rate of interest thereof from front tho the aith day of august A D 1901 imd and for his costs herein expended findings of fact conclusion conclusions of lw law and decree ma may be prepa prepared redin in conformity with thie this decision I 1 FERDINAND nilI OKSEN ORSEN judge fineral agelin of nil all tho roade roads run 1 ning into salt lake have beau noti fled by their lora that flint hereafter DO no rebate rebates me are to be allowed or other discriminations practiced itt order to get business this ie Is in accordance with the ng mad between the and the commerce the roade roads have agreed to furnish evidence cu to the commission 0 of f any viola vio loon tonti of the liw law which nitty come under their notice |