Ogden Sun | 1905-10-17 | Page 5 | Decision in Big Water Suit

NORTH OGDEN FARMERS CAN REMOVE obstructions 3 but they Must Not change the channel opia by judge howell from saturdays standard c judge J of the second district cour today gave his opinion la the big water suit of francis clarko et al vs north ogden alon company ct al in which he grants to the north ogden people tho right to remove trees and debris from the channel of the river it such obstructions have occurred since the time of tho original appropriation 0 water but the north ogden farmers are in from changing the natural channel the costs of suit are charged to the defendants except that each party to the action must pay their respective witness fees the decision in full is as followay the plaintiffs in this action are owners in severally of adjoining tracts of land in weber counte across and through which alowa one of the tribu baries of the ogden river called the north fork the natural channel of which has since the memory of man extended across aad through plaintiffs lands the defendant the north ogdan irrigation co la a corporation organized and existing under and by virtue ot the laws of the state of utah and at least for the purposes of this action Is the successor in interest of those certain persons who prior to abo acquisition by the plaintiffs of their landa o alt in 1855 or C by means of a dam and canal appropriated and diverted from the said ogden river at or near the mouth of the ogdan canyon and about fifteen miles down the river from plaintiffs lands second feet of water and each and every irrigation season since its appropriation it and bitsi predecessors in interest have diverted and used the above quantity of water upon lands adjacent to and under its canal which lands are owned or occupied by its stockholders and amount to about three thousand acres said lands being arid in character and not producing crops without the artificial application of water thereto but with such application of water producing valuable crops at the particular time however hereinafter referred to namely the nineteenth and twentieth of august there was not sufficient water flowing down the ogden river at the point of diversion of defendants canal to enable it to take the water to which it was entitled but on the contrary there was only about ten and a half second feet the plaintiffs reside in eden irrigation district their lands are located therein and they are interested in that system of irrigation and during each irrigation season for a number of years have permitted the officers thereof to divert said north fork all the water stream at a point above their lands and would have continued to do so at the time of bringing this action bad it not beba for the temporary restraining order issued in the case of the north ogden irrigation co vs the eden irrigation district 0 o that the water would not have flowed in the natural channel and across and through plain tins lands on the said twentieth day of august 1903 but during the flood water season that Is before the commencement of the irrigation season and subsequently to that season each year the water 0 the north fork flowed down the natural channel through and across plaintiffs lands which are used for pasturage and timber culture and by the seepage and percolation froin the said stream plaintiffs lands on which there grows grass and trees anve been watered and moistened to tho great benefit thereof the plaintiffs have also used tho waters of the north fork flowing through their lands for watering their cattle horses and other animals pasturing thereon the channel of the said north fork over plaintiffs lands has remained in the same condition as it was at the time of defendants appropriation of water except hat there have fallen therein certain trees around which debris has collected and formed artificial dams and gravel and sand has been washed from ono place to another and sand and gravel bars have been formed around which the water la forced to flow thus retarding it and causing it to percolate and seep into the ground more than it otherwise would on the nineteenth day of august last hauben short and others acting under and by the authority of the north irrigation arf went up ogden canyon above the point of diversion of the companas comp anys canal and to the vicinity of tho plaintiffs lands with teams and scrapers with the avowed purpose of entering upon plaintiffs land and removing obstructions from the channel of tho said north fork where it extends through and across said landa ot plaintiffs tor the purpose of cleaning and straightening out tho said channel and tor the purpose of removing gravel from one place to another and changing the course of said stream and tomo work in this direction was done by these agents of the defendant company in i the channel above plaintiffs lands on the said nineteenth day of the month and the following day nathaniel montgomery president of the defendant company and acting under its authority arrived on the scene with additional men teams and and with a large plow and assuming tho direction of all the other attempted to enter upon the lands of ono abam bers whose land Is contiguous to that of the plaintiffs but higher up stream in order to commence work on the channel and to continue such work down through and across the lands of the plaintiffs for the purpose of removing trees and other debria from the channel and for the f of digging through said bars around which the water must flow and by which it is retarded and for the purpose of scraping gravel out of the high places and into the low places thus preventing the accumulation of water in pools where it evaporates and seeps into ohp ground in other words by cleaning out and out the bottom of the natural chalmel until it would be to all intents and purposes similar to an artificial ditch or canal and thus of tho water so elhat less of it would evaporate and lesi of it would seep and percolate into the ground and more would flow down to the boint slon of plaintiffs canal and the courso of said stream be changed eo that ll 11 would be straight instead of meandering this is the first time the defendants had ever attempted to exercise such a right the said montgomery was however with his employed emp loyes prevented by the bald chambers from entering upon his land and was informed that he would be served with a temporary restraining order preventing him from carrying out his purpose whereupon he resisted desisted des isted and he and his companas comp anys employed emp loyes left the spot when therefore tae plaintiffs or their predecessors in interest acquired their lands from the united states they took them subject to any vested rights to water thereon which had accrued to the defendants herein prior thereto and namely the right to have the water to which it is entitled flow in the natural channel over plaintiffs lands and to its canal in quantity when an irrigator by prior appropriation haa acquired the right to the flow of a to a certain quantity of the water thereof it follows necessarily that hla appropriation pria tion Is in effect an appropriation also of all the tributaries tributa ries and other sources of supply of the stream so far as this may be necessary to insure to him the quantity of water covered by his appropriation this right was recognized by the decree in tho case of william geddes vs the north ogden irrigation co to which action the eden irrigation district was made a puny for in it the following language was used each of the carlies aforesaid being the owners of the ditches and water rights above described are decreed to be entitled to the exclusive use of so much of the waters of ogden river as will their ditches according to the dates of their appropriation pria tion that tho first in point ot time in appropriating said water and constructing ting said ditches are entitled to the first right in the water of said stream and EO on successively to the last appropriation that in case the water is insufficient in said stream at any time to fill all of said ditches then those having the junior appropriation pria tion shall turn into the natural channel ot the stream all ot the watce diverted by them until sufficient la turned into said stream to supply the ditches of any prior appropriations in point of time and such junior appropriations and all persons acting in aid or assistance of them are hereby enjoined and restrained from diverting any part of the waters of said river from the natural channel thereof except it be at such times and seasons as there may be a surplus of water in said river after supplying the ditches of all appropriations upon said stream whose appropriations were prior in point of time to the said persons so enjoined this right to the flow of the water to the prior ditch or canal is in the nature of an casement and of course carries with it the implied authority to do all that is necessary to secure the enjoyment of such easement and it includes therefore certain secondary easements one of which is to remove from the stream obstructions which have cither been placed in the channel thereof by the owner of tha land ana those which have come there by natural means since the time of the appropriation thus where the stream has become obstructed so as to prevent the water flowing to his ditch the appropriator has a right as against such subsequent purchaser to enter upon the land of the latter and remove the obstructions from the bed of the stream so as to permit the water to continue to flow in its original channel to the head of his ditch ware vs walker 12 pac 75 cal but this secondary easement like any other such easement must be exercised by the owner of the dominant estate only when necessary and in such a reasonable manner as not to needlessly increase tho burden upon the servient tenement As the court said in crisman vs heldeman 6 colo the appellant had the right to enter the bed of the stream above the ditch and to remove the sediment or obstructions which may have changed or obstructed tho course of the current so as to prevent it from entering his ditch the appropriation of the water at the point named carries with it an implied authority to do 11 that should become necessary to secure the benefit of tho appropriation to this extent the ap acquires an easement in the adjoining lands hut the right thus acquired is one which is held in the narrowest limits compatible alti hc enjoyment of the principal casement which is chef tight to the use of the water the most reasonable mode of effecting the object must bo adopted and it must be done in such a manner as to occasion as little damage as possible to the owner of tho adjoining premises alie necessity of obtaining water to run the mill did not justify the appellant in arbitrarily adopting a method which wasi calculated to greatly damage the property of others it has been well said thai the necessity of one mans business is not deemed the standard of another anians rights the great maxim of the law sic autere utere tuo ut non labedis applies with as much force to the enjoyment ot water rights as 0 o rights of any other description now bearing in mind tho reason for the existence of the principal ampro right wo will have little difficulty in fixing what he may do on the lands above his canal or ditch and through which the natural stream floies he has the right to insist that the water continue to flow as it did when he his appropriation but he cannot complain of every obstruction st which has leen placed or which has arisen or will arise therein and velch a mere temporary or trivial irregularity in tho flow of tho stream such an obstruction in other words does not cause actual injury to ho principal appropriation but it the obstruction is such tha A ble or injury Is caused such as appreciably interferes with his water right or re tards that flow then he has a right to 11 in other words the easement which a prior appropriator lias to enter upon tho lands above the point of diversion OAIS canal or ditch and across and through which the natural stream flows does not go to tho extent of permitting him to ackan and straighten out the entire channel in buch man cpr npr that he would make of it practically an artificial canor or ditch and in such a way as to abrose the course of the stream ho not permitted to place any impervious matter in ih stream for the purpose of preventing the natural seepage percolation biml evaporation of tho ater nor 10 pip the water of the el ream noi is permitted to dam one or other of the forica of the stream where it divides into two forks if such forks existed at the time of his appropriation all these acts would lend to change the manner of the flow of the water from thai in which it flowed at the time of the appropriation in removing obstructions which have been placed in the stream since the time of the appropriation or arisen therein toy reason of natural cause he is not pel bitted to transfer every particle ot sand or every bit of gravel which may have been hy reason of the natural flow ot the water changed from one place to another his sole right is to remove those obstructions which change the character of the channel from what it was at the time of the appropriation and sensibly retard the flow of the water therein thus he may remote trees and other debris which may havo fallen into the channel and which to a greater or less degree retard the flow of the water therein thus also he may remove any and bars which may have been formed in the channel of the stream or which may form therein after the date the appropriation and which materially retard tho flow of the water viewing tho evidence in this case in the light of the principles above set forth it seems to the court in this case that the defendant the korth ogden irrigation co acting by and through its agonia right to remove those trees and the debris collected around the same which according to the testimony have fallen into the stream on plaintiffs lands subsequent to the date of appropriation and hy which means the flow of the water la retarded it has also the right by and through its agents to remove those sandbars which have been testified to in tho case aa having been formed upon the plaintiffs lands and around which the water is forced to flow thus interfering with the flow of the stream as it wasat the time of the appropriation I 1 have scanned the testimony carefully with a view of determining for the aid of the parties just what sandbars there are in the river where it flows through the lands of tho plaintiffs which come within the above definition and I 1 have come to the conclusion that there is not more than one upon each of the plaintiffs lands fla testified to ty the plaintiff francis clarke A more definite finding it is impossible for the court to make from the evidence introduced and the court does not deem it necessary to make any more definite finding tor the reason that the defendant in exercising its rights must do so at the peril of going beyond what is allowed by law wherefore it seems to the court that the defendant the north ogden irrigation co and those parties named in this action who were acting as agents for said company and all other persons acting for and inbe halt of said company should ibe perpetually enjoined and restrained from entering upon plaintiffs said lands for the purpose of cleaning and straightening out the channel bf the said north fork through and across plaintiffs lands in such manner as would make an artificial canal or ditch and in such a way that it would change tho course of said stream that it should be perpetually enjoined and restrained that Is as acting through its agents or other persons in its behalf etc from changing or removing any gravel which may be wished or which may hereafter wash from one place to another except in such places where as hereinbefore set forth sand or gravel bars have been formed since the time of the