| Show EDEN IRRIGATOR 8 WILL OBEY ORDER OF COURT lawyers for both sides give their views on tho courts order from standard atie plato Uffa ielne of the north ogden irrigation company vs george A fuller et al have made a formal demand upon the eden farmers that the water that the court has decided la unlawfully restrained by thodia be into the north tork of the og den river and bo permitted to flow down the river wednesday judge bitting in the third district court in salt lake gave his decision ln the contempt of court proceedings which were baand baaed on a decision handed sept 10 in the territorial supreme court in the case of gedd vs the north ogdan company that decision decreed that whenever the water in the north fork of the river became insufficient then those who bad junior appropriation should turn the water in their ditches bade into the river tha north ogden irrigation company had prior right over the defendants named and on that right based their claim of contempt the badge also said that the provision of tho decree is clear and explicit and that it has but one reasonable construction and that Is that the eden must take care that no act on their part prevents feet of water reaching the head gate of the north ogden irrigation company the attorneys for both parties to the suit were seen and gave their views of the decision all admit that the verdict Is what they expected and everybody beems to be satisfied when asked it the water had been turned into the river attorney J N kimball one of the counsel for the respondents bald that he understood that bis clients had complied with the request of the north farmers aad that they had turned the water down the river will the crops be anany way injured through the turning of the water into its natural bed he was asked not this year bald sir kimball the email grain Is all in also the first cutting of alfalfa but the second cutting and the potatoes may bo injured attorney kimball also said that the decision did not order that the water be turned down the river but that to avoid more suits of the same na ture counsel had advised that the water bs released judge magennis and judge bagley both said that the decision was what bey expected and that their clients dad made a formal demand that the water be turned into the river As to what future acolon in the suit is to ba taken the attorneys could not say as they have not had the time to go over the decision handed down by judge fritchle Ritch le but it Is understood that an appeal from the decision will ie taken by the respondents judge decision in full is as follows the respondents are cited to show cause why they should not be dealt with for contempt for diverting on the ard 3rd day of august 1905 the entire flow of water in the north fork of ogden river in violation of a decree of the territorial district court having jurisdiction rendered september 10 1893 tor want of time to carefully state all the undisputed facts familiar to the parties on the hear mg and referring only to such as seem necessary to explain the conclusions arrived at it is found in that decree to which both the north ogden irrigation company the predecessor ot the present company of the samo name and the eden irrigation district by its trustees were parties with numerous others that the owner of the earliest appropriation prior to all others was the mountain fort settlement second the lynn irrigation company third the ogden bench irrigating district fourth the north outten irrigation company the predecessor 0 the plaintiff and the finding Is now made from the evidence introduced on this hearing based upon that decree that the parties respectively were entitled under their appropriations to the following quantities of water mountain fort lynn ogden bench north ogden 2135 these rights in the order above named are all prior to the right under that decree of the eden irrigation district the decree of this court rendered in 1904 between the eden irrigation district and the plain city irrigation company which last company or its predecessors la interest appears to have baen a party to the old decree first mentioned but whose rights are inferior to tho first four appropriators named though apparently superior under the old decree to those of the eden district has been introduced in evidence and it is claimed by the re latore to show superior right in the eden district to the awa city district aa regards the waters now in controversy tro versy it Is not necessary now to pass upon that question though apparently it may ba said tho contention Is well founded and between those parties so far aa the old decree Is inconsistent with the new if at all it must yield to the later decree but as the north ogden company was not a party to the suit or tho decree rendered in 1904 the court has no power aa the case now stands and in this proceeding to consider the decree of 1904 as at it rights and can only judge of such rights as measure by tho decree of 1892 in the light of tho evidence now offered the decre of among other things provides that in case the water is insufficient in said stream at any time to fill all the said ditches then those having the junior appropriation shall turn into the natural channel ot the stream all of tho water diverted by them until sufficient Is turned into said stream to supply the ditches of any prior appropriators appropriator a in point of time and such junior appropriators and all persona acting in ala or assistance of them aro hereby enjoined and restrained from diverting any part of the waters of eald river from the natural channel thereof except it bo at such times and seasons aa there may be a surplus of water in said river after supplying all the ditches of all appropriators upon said stream appropriations were prior in point of time to the said persona eo enjoined this provision in the decree la clear and explicit it seems elble to give it but one reasonable construction and that Is that the eden district must take care that no act on their part prevents second feet of water reaching the head gate of the north canal and it any act on their part in whole or in part prevents that result it Is a violation pt the injunction just quoted from that decree it would be impracticable to undertake to review the evidence la detail as to the amount of water act bally flowing or that included the amount diverted by the ogden water works a junior appropriator and that diverted by the utah light rail way company a junior appropriator and returned to the river below which amount on august ard 3rd 1903 was 34 second toot but it suffices to say that upon no theory can the court find that so much as second feet or approximately that inclusive of the amounts diverted aa just stated was available on that day in the channel 0 the ogden river to reach the head gate of the north ogden canal the court find that they ara gollay of contempt of that decree tha however shows that they probably intended no contempt of the authority of the coart and that will be taken into consideration findings and an order may be prepared in accordance with these views and the order will b that david land say bo discharged no sufficient reason appearing to hold him and that george A fuller and virgil B stol langs are guilty of contempt for the acts charged and that they pay the coats of this proceeding |
