Show IMPORTANT DECISION js banded down by 1111 r 1 T Ilo I 1 lapp t la the hooper hoover irrigation Ca which a point of law never before arising Is decided judge yesterday rendered bis his decision in the case of john mannin manning et al trustee of the hooper irrigation company anti the wilson willson irrigation Coia pany plaintiffs ve vs joeeph joseph fife ct rt a al trustee ot of the Ri verdale irrigation company deciding in favor ol 01 the defendants fend ants and agaid the plaintiffs rhe courts opinion in part is given as lai ire number of farmers and others have been interested inte reeled in the cage care the plaintiffs in this action are the respective trust cee Lea ot of the hooper arri t filion co and arid the wilson Irth irrigation atlon co and abo defendant defendants are trustees trus fees of t the Ri tyer verdle Z e irrigation co all taking water froni from the weber river toe tie plaintiff lain 1 in effect claim that the de fe fondant company in to 1867 appropriate 1 7 1 cubic feet ot of water from the web webar r river and that thereafter the hooper r irrigation ao 30 co appropriated cuha anh feet and thai that shereaf thereafter ter the wilton wilson irrigation company appropriated 90 en cu ic le feet Iee tand and that on august 3 1897 the defendant company unlawfully and wrongfully turned into int its canal the waters tere belonging be to the plaint ff companies tor for the purpose of delivering tho ilia ganie same to the davie davis weber Conn counties tira canal co known otherwise its 9 the central canal and alaa 1 other persona persons that they threatened to continue sue such 11 rong and therefore flek ask for a permanent injunction toe de deny the plaintiffs appropriation ap and claim that they are prior of 2057 cubic fet ie of waler sarc and an deny y the wrone wron x complained of fault ask fk that the tilt be lee 1 i them to a prior appropriation of 2067 7 cubic feet of water as against the plaintiff companies the prof shows that originally the ditch was 5 fret feet wide by 1 12 jeet jeep at a point where the tile ditch proper begins that between thia this point and a od the point of diversion vereion di from the weber b er river there is i a wide slough connect conne cl bioff ng with the natural channel of be river which ie is aping used aa as a mean means a of diverting divert irig the veter water from the river into the Ri verdale ditch proper thattie that the he adgate 0 of the defendant com panya ditch which was below this and nd waa was 8 feet ft et wide by 24 2 feet deep that originally the water flowing hirough through thia this be adgate was tied although diverted by the defendants but flowed into the slough and waited wasted more or leserr less or else el so run ran over iba over the another waste channel returning to the 1 that in 1877 whit whitt was known aa the ghaham ditch wee abandoned and the water sent through the Ri verdale ditch this was by widening the Rive Ri verdale idele ditch to 71 li feet and by consuming more of the J willer running into abo slough or in the waite waste ditch that in 1891 tome more repairs were made but without any rua ma aerial enlargement that on august 2 1897 by arrangement with river dale people joseph goodale and 0 zihere here having lede under had bad the water in the Ri River verdale dalo ditch then la amo mounting antine lo 10 about 17 cubic leel feet turned out of the Ri rivendale Riv enJala verdale ditch and turned into Canal through if its head bead zate lete higher up the stream con darting the water for alveral mile through that cinal canal to their lande lands end and using the same tor for five days and five nights nig lits after which time the water waters were ere again re returned turned to the Ri verdale lale ditch that the methot of the acrea acres of ina land under the Ri rivendale verdale ditch was to allow each shareholder to use hie his proportion ol 01 water once a week with the exception of a me of the shareholders baldere bol dere who instead of gett gelling illg their pro rati rat weekly rot got a certain pro proportion polon of the it alternatively ter upon some blanco of each such land that this canan cona med timed ane entire na we ere era flowing into luto the ditch during the tile seaon season that by some peculiar 0 their the r own the shares ot of the Ri rivendale verdale company of 0 the par value of are constantly increasing cipo the tho books b by the coet cost of 0 every improvement ont cirt yde of the annual assessment but bat that ae as a matter of fact it causes the water value of auch such shares to decrease in the same proportion pro pori un that the shares themselves increase so tar far aa as the a appropriation P of the rivendale Kl Ri verdale company a concel concerned ned I 1 think that through th thair ir original and through t the a original appropriation deade by t the a graham ditch admitted to have been prior to either of plaint iffla tia a 9 they are entitled to a prior appropriation pria alton tion ni as ai alnet the tile plaintiff plaint lff comp atles of the waters contained in tie tle ditch 1 7 feet wide by 1 feet deep running at the average velocity of 1156 feet per second or 1867 cubic feet of water per 6 second any tiny given 11 pointon point poin tor cr ae as the eta tate calla calls them 18 07 feet ei I 1 come to that conclusion first frona from the fact that ae as fitial lost these those plaintiffs the etaine ei of 0 limitation limitations hae has run and that bach such limitation need not IM I 1 plead second an appropriation ie to no 10 leee an in appropriation becal lre tho amount diverted is it the amount of such original di dh eMlon verMon la to ben beri facially used in an 11 la in this hi cage case it seem seems to do me that prior to ul tile abandonment of 0 the graham Gratia rn ze iab the actual diversion ui vereion version of 0 the kiver river d dale people 0 P le was the tile water flowing gra through an n opening OP elling eight feet wide and i two teet feet deep with a IL velocity of 0 feet or aboul about 2 a cu cabic b c feet bat but euch such i diversion did not amount to an go ampro pria privation tion except to so arch 86 WB was bene bells 11 cialli need by tie appropriators watch w was s 8 O 0 only n ly the capacity 0 ot f the d ditch i ai ai t feet wide wilh the tile same velocity and depth or about 1309 cubic leet feet the graham 1 ditch was entitled to divert and anti use I 1 from weber river a stream about ball halt the e ze ol 01 the tile river late Jale ditch it was not necessary necee eary to enlarge the point of I 1 diversion diversi cn in order to take that much j water through tae tao Ri rivendale River verdale dule ditch bi cause acab point let in more water than I 1 both canals were entitled to but it ae as I 1 necessary necee eary to enlarge abe inabin ditcu eo so ae as i to tarry carry the increased amount and that 1 they did jid plaintiffs cannot comi comp iljin idin I 1 when the graham ditch let ite its water go i don do a nto to th the defendants and instead of i increasing the amount diverted theretofore 1 by the Rive idali people they used the waste occasioned by the latter or the waters they returned through the baete channel in either event as much or probably inore more water actually went down to plaintiff plaintiffs the other points go contended for by plaintiffs are that the diversion 0 of the water belonging to Ri verdale at he be point where it was diverted to the central canal wee was first a specific wrong to plaintiffs if thi waters had been used in inthe abe Ri verdale ditch lome portions would have percolated to the river title in the central canal and land used again and second a specific wrong he the Ri verdale ditch had no right t to loan their water rights to any other person but if they ceased to have any immediate need fir for the same that the stream be tamed turned down to plaintiffs and third that more than that the amount usel uee 1 by the Ri verdale dinh din h wae was turned d cown the central canal As to the facie facts I 1 will consider them inversely ae as here plated in the first prot ploce place i do not think blat it ie is eho to by the preponderance of the evidence that more than 1867 cubic feet the Ri verdale stream when it was shot down nor that thal more MOTO than that taking la kini into consideration the other water that was turned in the central albal Al jal wa was actually taken into the central canal nor that there wae was any unreasonable waste of war occasioned thereby secondly the irrigation needs of lands are not determined by the mere fact that the cro crop p 9 d did i ade n not ot die nor even ever by the fact th that a t t they y all showed ow ed no culm autard ard signe igns a of having buffered suffered the rights to t the he use of water when oce oace appropriated I 1 extends to the reasonable un cin of euch such water waterland wat erand and that cannot be determined bv by the use of euch buell water witter a more nor can I 1 eay say as a batter matter of lav law or fact in the we face of the testimony that plod crops had tied been previously onely raised by bythe the aae of the entee of 0 water during the entire irritation season that such crops did hot inot need water tor for five days in august probably no crop could be imagined that had ban otherwise well watered that could not lave bave endured an absence of water for one week eek lover and above its usual allowance and that was the extra me lost by the Ri verdale pepla to their lends and then to some toleif cf their only because the owners turn came up the remaining two days of 0 the week durine during which the water wae was wed in the central canal sustained no loea loss whatever third there ie to no tee tes in thia this case showing either liow how clove the landa lands irrigated in Ri verdale gif are e to ti tle e river or t any of 01 the waler acqua actually ly p percolated rcola fated ted to the and therefore neither by reason of the testimony nor not by reavon of the law of oi nature could euch such percolation i be determined either as a fact cr ur it i so as to amount I 1 but it is contended that an atur adur of witter cannot dispose of w ten once appropriated by him for a beneficial purpose to some other beneficial use not per personal e onal tu to the tile appropriator appropriators nor up upon 0 n lands lauds belong ne no to him and in support counsel cites cro cafek ek v bozeman water works co 38 pac but I 1 do not think that cage case supports the doctrine contended tor for the tile court in thai that cun con says alter after stating et atin that the original appropriation of ly man wan wal for a farm of acres ony only it ie to well understood that a creek in thee these mount mountainous alcious reri nf nr flowing it volume oi inches would suffice to irrigate more than one mall farni farm nol not out only eo so but that there are considerable per periods when a farmer doe not hie his crops still the water flowe flow on f for or ever the court thus established from the evidence which they review ft that 1250 inches could not originally fin have vs been applied by lyman to a beneficial use upon bie his acres and cons eons to ao so touch ol 01 it as wae was not to applied appropriation was made anae and anil re condly no that a IGO acre farm farot woul I 1 not a continuous stream of that a ze zo require for irrigation irrie allon and therefore water in that tile then wae was creek subject to be appropriated by a ampro or still further addition to the court baye but utin n on irrigation of it land aa an aue the estor to toabe tile ot 01 LY alyine tra engaged it in the buslon ss of company supplying the inhabitants ol 01 boz pox inan inari with water upon uch fuch f facts tho trial court haq clearly in error to permit tie to take uch ouch addi un on weer company because L lin m n imply al cupply ly simply bad 1 it that a cn is e that clamming tried upon the theory and anti appropriative the tam are waler whick ii never baa been aid and fleno ymon wilett will tt I 1 tho ho lw if lu other word ever r the court wh while lle it that an appropriator ator ot water may change the uee use of hia his appropriation iten 1 maintains m a iota a the doctrine that after an appropriator bae has taken nater froni from a stream sufficient to answer ibe libe of 0 hie his appropriation iu ili this case ol 01 IGO acres ho he cannot take the wale n of the stream remaining by simply claiming cl aimini them sell 11 them to g parti partia pari ie a and thereby deprive nt ampro briatore pria tore store of their right to ase use the came earne I 1 in that doctrine I 1 heartily concur but in this ce case it ie is not estAble bed 1 that 1867 cubic teet feet ie is not and bae ba a not lot always alwa been necessary necee sarv to irrigate rea sonk ly acree acres of land in rivendale Ki Ri nor that the defendants claim the I 1 to sell give away or uee use more thin than is sufficient to answer the purpose of their I 1 appropriator lor do I 1 think abal the doctrine laic laid cown own in supper a the coltrine do doL trine contended for by plaintiffs because while I 1 believe a mining claim or a mill may acquire by appropriation a right to have a stream say of 2 20 calic teet flow down a certain clennel and run its bar or wheel yet it mutt be discharged below in ibe the asme proportion an is it wae was originally d s i charged and such 20 cubic feet could not be put upon lands for irrigation pair poses to the detriment of subsequent ap proprietors in other wore if a farmer arnier cornea comes to a creek leving laying a prior ampro a minice mining claim or a mill and views the situation asid sees that aber the water bae has answered the for which the prior appropriation has been made end arid that sufficient remains to eni oni ewer bis his subsequent appropriation puri poser be 14 i entitled to have that condition i of affairs demmin after hie his 1 aaion as it waa was prior to hie his tion but as to the amount act actually nally fini voni j fumed either in to the mill or the mining i bar it if any such there be the tile quent appropriator cannot complain it that should be neel used for any other benej benet IH t ficiala purpose or at any other place man that which existed at the time of tile i adibell put plaintiff plain liff alto also rely upon certain statements rade as to tile amount of water wafer claimed by Ri verdale wt ile hat that testimony probably affected the as a to the accuracy and i knowledge of the witnesses I 1 am viiu dent that the P arze ze 0 of the ditch as eivan by me t is e substantially U bs tan bially correct and aa it has existed since 1877 7 from the whole hole testimony I 1 come 1 the conclusion that the Ri verdale corn com panr did not divert to the atral 01 al at more waier wafer than they were entitled to use in the Ri verdale ditch that aa as to that amount they bad had a righetto right lo 10 chanze the point of diversion t liu as any other land even though not their own to lone long as no gaea 02 e was occasioned thereby and that t awn h change was no injury to plat plaintiffs fit effs te vie bill may be dismissed december 23 1897 |