Show A WATER CASK DECIDED the stowel johnson lo 10 a close rill TEST OF TOE fur Irrig ainz alone Is as att fur laatt 1 THE CASE important ti the following decision by judge Hende reou in alie first district court yesterday in alie celebrated water case of hain etal is J T johndon et al n hii ii cannot fail to prove of much to all parties who have taken up cladma in connection with alie water right thereto the complaint eliat the plaintiffs are the ovara of certain real estate it eliat the plaintiffs are the richt to use fur irrigating eaid I 1 ind and for supplying BUp plying city with ater all the DOM of aler fall canyon creek and half of alie flow of strongs bt canyon creek ahat more than ten years before the cline of the complaint the plaintiff their in interest and granfors grantors gran tors jointly constructed ditt liM laid pipes from the natural channels of eaid stream to and upon their eaid land and by means thereof diverted all the water of waterfall canyon creek and cne half of strongs canyon creek and eliat for more than ten 3 ears last past they have openly peaceably un n and continuously used alf waters aforesaid through said pipes the complaint further alleges that the defendants have interfered with euch rights it prays for an injunction restraining the defendants fend ants from interfering their rights as abo e set furth and eliat the plain tius be decreed to ta the owners of slid aforesaid alie answer of the defendants denies that the plaintiffs or any or either of them are the owners of alie right to use for irrigating the lands in the complaint or for city with water or tor any purpose all or any part of the two streams mentioned except a secondary right to irrigate thirty aires of their paid land the answer denies in general the allegations of the complaint end bainn that the defendants their predecessors decess ors in interest appropriated the water of said creeks more than thirty years ago and that they are the owners of the first or prior right thereto then follows a description of the creeks and the amount of water in each bow they flow from the mountains and ugilt into one annj r the name of canuela creek alie decree continues the testimony shows that as early as 1848 settlers commenced to locate and im prove land on the loner part of canfield creek and to irrigate their lands from this creek and various were made upon the creek extending along it easterly for several years and pr bibly up to ISM and possibly poH Sibly borne laer aliese eel tera irrigated their lauds from canfield creek and the defendants are alie in interest of settlers the landi of the plaintiff are situated farther eat and on the north side of water fall binyon creek before it forms its sanction janc tion with betron gs canyon creek and their lands consist ma aly of a leel plateau prior to battlement lad been these lands but no groat improvement made some eikill amount of irritating seema to have been done and the fur that purpose taken from waterfall and possibly from strongs canyon in ISO the plaintiff scow ell in in all the who lias fettled upon these lands and during that year or the next year the plaintiffs went across the ravine through which waterfall creek flowed and on 0 o the hiigli didgo or ground where strongs canyon creek from the mountains anil well up towards alie mouth of the canyon and constructed a ditch from canyon creek carrying it little west and across the bed 0 waterfall canyon creek onto their lands and from that time have aeed water through that ditch up to the time the pipes were put in as hereafter sa tej the plaintiffs alo went into waterfall canyon and constructed a board flame of considerable leng li to take the waters from ap in the canyon and carry them over the loose ground below eliere it usually sinks to firmer ground below aad conducted water dow n through said ditch and irrigated the land in that manner they continued to improve and irrigate their lands and to reduce their lands to cultivation from that time A portion of the lands of the plaintiff in alie lied or ravine of waterfall canyon creek are soft and porous and the re ault of spreading dacra therein through or en ditches was that springs gerung up in the lower part of their ground aad near alie junction of the two creeks which during the irrigation beason would flow quite an amount of water and thereby augment the volume of water in canfield creek tula use of the waters of those creeks seeing to have been known by tha defendants and their successors in interest and the we by the plaintiffs was recognized and from and up to and perhaps some time after aliat all the parties hereunto seemed to recognize each others right to the use of water they bield annual meetings at which a water master was elected to look after their jont interests in lie meantime other parties had settled near various creeks and biad made appropriations burjett to the prior rights of the parties to this case and in the meetings they recognized two classes of claims upon this creek one as prior rights or primary rights and others as ee condary rights they chem never to have determined who the first B proprietors were and to have them latch in the order of their except to make two classed of them ow of the angi cal or primary and one of ee condary and in these the their interest were lecog niad as belonging to the flats daig bated as primary at ono lifting mif ting held abigt a reso lu ion was to have ano water one representing the first and one the ee condary appropriators pria tors thereby recognizing that the primary as they termed theiu were entitled to equal and at ohp paine as water master for lie primary appropriator a the person birc benting the plaint iua was elected water cafter thereby designating him as one of he parties who held a primary or original right in 1832 alie entered into a control with oden city towan hit wag agreed between them and alie city that the city should put in enclosed iron pipes to convey water from tit canyon creek and from waterfall canyon creek to and upon the lands of the plaintiff and extending from thereon and that during the irrigating beason the have the uee of said pipes to convey the water upon their bands for irrigating purposes and that during that portion of the ear when it was needed for irrigating that they the city lake one haf of the now of w 8 calyon creek and all of the low of waterfall canyon creek and turn it in on ther reservoir reger voir these pipes were ut put in aej water thereafter conveyed through them the of conveying these waters these closed pipes was tody up ahe princa on the low grounds if the plain tilTs and thereby ice dentally diminish the flow of aaa r in C infield creek the claim that during all the almo from 1802 through the ditches before mentioned aed they had actually and as a matter of fact divert d and taken the waters of waterfall tanyon beek and one halt of strongs anon creek upon the r lac Js anil diet I 1 hereford he claimed that aliey had been in the ie of cne half of S cre li aid ahn whole of waterfall citak tor the statutory period of bvm aad that therefore it be I 1 hem on the piert 0 the defendants it is claimed that aliey are alie prior ap and they have the prior right hat the plaintiffs right is a secondary right and they claim farher that the waters which were diverted rom both of the creeks above being spread U on the plaintiffs land aue edthe springs on the low grounds on the lower parts of their and to flow and theraby augment supply of watt and tint the change in the use is detrimental to them and is er the also claim that the bhangu in the manner of the use and the contract by which alie allowed alie bicy to pot in its lae forfeited all rights that the lan tilTs leave that is eliat the pipes which are now put in belongs t the city and the water diverted them also belongs to the city and that the plaintiffs leave lost all control over it it will bo that by the contract between the plain and the ity the retain a beneficial Sute eftin them that by its terms aliey were entitled to lie use of aliese pipes as conduits for their water it wa c by counsel for the defendants that if the city should see fit during the arri gating leaion to take water down to their rege noir 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 cou tract is such that the plaintiffs could enjoin the city from so diverting the water and that the plaintiffs retain by that contract right to whatever water had before aliey only changed the manner of taking from the streams and took it in a way which caused less loss therefore I 1 do not think that the plaintiffs have lost their right whatever they may hae had by this change As to the amount of bacr w aich the plaintiffs hae claimed and used during the irrigating ri bead on and as to what amount of water had been turned strongs canyon creek into di ch the testimony tei is very COD diet ing it showed that the parties had tried to accommodate each other that water masters had tried to satisfy all persons complaining to them As a matter of fact it does appear eliat a great time at one half of the wafers of strongs can von wa into plaintiffs ditch T ait in there ft as no regularity in the seasons of low w sometimes the whole volume of water was turned into lie plaintiffs plaint ifFa ditch for a time and then turned down the for the defendants use but in all the transactions tran actions as before stated the plaintiff beem to have been recognized as laving a right as an original appropriator and this commenced very boon after 1862 and so continued without interruption until 1882 it must therefore I 1 be determined ter mined that the plaint have a right in the waters of stream tt ream equal in time of appropriation to the defendants but the question remains aa to what alie amount of that appropriation pria tion was the plaintiffs as before stated line undertaken to establish their title to the waters of waterfall and one bialt of canyon creeks bv evidence evid nce that they have actually liaa and used ii in order to constitute a title by user especially as against persons ft ho are as adl prior appropriators it buet be shown that the use was open notorious and adverse that is it mut be shown that the party made claim to lia rights openly and that lie other party knowing and understanding what the claim was acquiesced in it or at least permitted the user in what the amount in this cae is we must have recourse to all the circumstances of the ray in llie first place the point of division of strongs canyon creek was up in the mountains and at a point remote from he parties inter cited the testimony it was seldom ry any bat the water master the water master it is true all the parties he represented the plaintiffs as well as the defendants and the imro fact that the w ater master had yielded to the comi hints of the plaintiffs and turned water domni to them even though it may have continued for many years unless it could be biown that it was brought actually to alie attention and notice of the defendants could not bar their rights but in a circumstance toa claie which indicates indica tei the amount of these waters that the plaintiffs did cla in A statute had been passed before that time creating the selectmen of the county katr in and for various counties and give them jurisdiction to apportion water nabs and to regulate them alie statute has been declared but in 1880 alie plaintiffs anade a written petition to this court in to their water rights in these two streams and in that petition aliey set forth that they are the owners of the land in the complaint and that they were the owners to a primary right to thirty one hundred and sixteenths of the waters of thew two creeks tor the purpose of the pan ip this then at that time was reclaim te claim that they were assert in 1 hia petition was signed by alie parties who proceeded the plaintiffs in interest and it was beorn to in pursuance to that petition the water odara them to be the owners of that amount of water and issued a certificate accordingly and in this certin rate was taken and filed and recorded of course this is not lies but it indicates that at that time the plaintiffs or their in interest were only openly claiming to own thirty one and aix of this water to which they now caim to have a title to one half of one creek and the whole of the oilier 1 I I 1 hints it is but reigo rable to we that thia IB the only claim they were making to the and aliat is tho only claim the they were consenting to they admitted them to an equal with themselves the melves la point of time therefore I 1 think tint du the amount of cladinor cla tinor to shirli diio re entitled by r abon of their no 18 we hundred and thirty alx of the waters of eliote ano i creams aa to the we by the plaintiff I 1 do not that it ia a matter defendants defend anta can complain it the have boome alie owneta of that amount of water they can dihe it during the time that they own it as they sie si e fit while it Is true that while they took the waters and die them upon their laoda it thereby caused springs to flow down apon the defendants lands yet chev did not require such a unlit in ulicee springs aa would preclude tha plain ditl a roiti changing their use of the w ater they were merely peri ol aing waters and being puch they belong to the odthe soil and aliey could divert them and make such anso of them as ta ey SAW fit As to the appropriation of one ciak of the waters of strongs canyon creek and all the of waterfall canyon creek during that dirtion of the season when iliev are nt wanted for irrigation and during lie time that they were conveyed coave to the city through their pipes I 1 am inclined to regard tins as an original nil appropriation the naters of these streams op 10 1882 when lie city pipes were put in had only been appropriated for that is lr ingi tion and consequently only for abo ata son it is arne that the settlers along canfield creek used water f r domestic purposed pur posea during the ft inter but the appropriation which lias been made of one half of the water of St canyon creek leaves sufficient in brongs gs canyon creek to furnish water for this o and the that they had male an appropriation during the summer time while it was wanted on the land does not proe an appropriation tor any other part of the year if water is appropriated by a party only for a portion of the time it remains for the balance of the time ether persons cm appropriate it as chev see fit therefore I 1 that the appropriation pria tion in the winter season that is after the irrigating reason ia over of one half of all the water of strongs canyon creek and all of lie waters of waterfall canyon creek is a new and independent appropriation of waters eliat had not before that time baen appropriated 1 I therefore think eliat a decree be entered i a this case awarding to the plaintiffs thirty one hun dred and sixteenth of the waters of waterfall anil strongs canyon creeks during the irrigating season and only then and eliat which they had appropriated after the irrigating season is oer in each year and unil it abtin year one half of strongs canyon creek all of waterfall canyon creek and that alie balance belongs to alie defendants 11 II P judge how this will effect the cites rights to these v aters ia yet to be determined As will be seen by alie stae ment in the decision deci aion stow ell sold to the city in 1882 the right to put in pipes and ue all of the waters of waterfall creek anal liala of brongs gs creek during the winter season lor city uses those pipes were laid by alie old council and from the city has derived its winter supply when the pipes in the canyon would fre zo A short time before lie old connul wen tout of office they purchased right from colonel swan who ha I 1 previously bought it of stowell tins water embraced |