Sigurd City v. State , 105 Utah 278 ( 1943 )

I dissent. I agree with the prevailing opinion that the findings of the trial court are sustained by the evidence and should be upheld. I also agree that the instructions given on the measure of damages were correct, and that the motion to strike the cost bill was properly denied. But I dissent vehemently from that part of the opinion which places an interpretation on the findings of the trial court, which to me is contrary to the plain wording of five findings, two conclusions of law and two provisions of the judgment; and which reverses the trial court on an instruction relative to determining the amount of water taken by plaintiff. Mr. Justice WADE in the prevailing opinion sets out certain matters as findings of fact by the court which he says are the basis of defendants' water rights; and that such findings are sustained by evidence and cannot be reversed. He then declares certain other matters embraced in the court's findings are in reality conclusions of law, and are set aside as not sustained by the facts. The opinion does not point out what parts of the findings are thus set aside except to say those "in conflict with the views herein expressed." I am unable to brush these findings of fact aside as mere conclusions of law unsustained by the facts, especially when appellant concedes they are findings of fact, and does not contend that either the conclusions of law or the judgment are contrary to or are not supported by the findings of fact. Appellant does contend that the findings of fact as entered are not sustained by the evidence, but does not contend any of them are conclusions of law.

I here set out the essential parts of the findings of the court, also of the conclusions of law, and of the judgment The court found in finding No. 6, that:

"Defendants Nebeker, have contracted to purchase from defendant, State of Utah * * * [certain lands.] together with all water and ditch rights of every nature used in connection with said lands and that the waters of Ross's Creek including the springs and seeps heretofore mentioned [in findings 2, 3, and 4, which speak of the waters taken into plaintiff's pipeline] are part of the waters now and for more than 50 years last pastused in connection with said lands, and that because of saiduse for more than 50 years by defendants and their predecessors in interest they have now become and now are entitled to the use of all said waters forirrigation, culinary and domestic purposes. And that they have at all times prior to the taking of said water by the plaintiff as aforesaid used said waters and all of them from the first day of May to the 15th day of October of each and every year and that they are entitled to and have used one-half (1/2) of said waters as aforesaid from the 1st day of March until the 1st day of May of each and every year, which rights so belonging to the defendants are prior and superior to any and all rights of the plaintiff by virtue of said application to appropriate or otherwise." (Italics and brackets added.)

In finding VII we read:

"That defendants are the owners of the right to use all said waters for agricultural, culinary and domestic purposes as heretofore set out and that the plaintiff has endeavored to purchase from the defendants their rights in said springs andseeps but that they have been unable to agree with plaintiff as to the value thereof." (Italics added.)

In finding VIII the court said:

"That for the purpose of irrigating said lands this defendant and his predecessors went upon a stream known as Kings Meadow Canyon Creek and diverted the same and all of the watersincluding the waters on the surface and underground and used the same continuously thereafter and have, excepting for the acts of the plaintiff, continued to use said waters for the irrigation and cultivation of said lands, and for culinary domestic, and stock watering purposes. That there is tributary to said KingsMeadow Canyon Creek a stream of water flowing above and beneaththe ground known as Peterson Creek and that tributary to saidPeterson Creek is the stream heretofore referred to [water taken into plaintiff's pipeline] including the springs and seeps, as Ross's Creek all of which water during all of said time havebeen used by defendants and their predecessors. * * *" (Brackets and italics added.)

Finding X reads:

"That defendants and their predecessors appropriated all ofthe waters in and near Ross's Canyon (except during the period of time as shown by the preceding paragraph) prior to the year 1900, and that said defendants and their predecessors havecontinuously adversely, openly and notoriously used saidwaters each and every year, and that said waters have been so used for irrigation, stock watering and domestic purposes as one system, and that the taking away ofpart of said waters from said system has resulted in a diminutionof the remaining water rights." (Italics added.)

We now turn to the conclusions of law, III and IV reading:

"That the defendants are the owners of a right to use all ofthe waters of the springs and seeps of Ross's Creek from May 1st to October 15th of each year and one-half of said waters from March 1st to May 1st of each year." (Italics added.)

"That plaintiff has taken of water belonging to thedefendants and diverted it into its pipe line twenty-four hundredths (.24) of a cubic foot of water per second of the flow of Ross's Creek, and is so diverting the source." (Italics added.)

Let us now look at the judgment. In paragraphs 1, 2, and 3 we read:

"1 — That the defendants are the owners of the right to the use of all the water of Ross's Creek and springs and seepstributary thereto in Sevier County, Utah for the period from May 1st to October 15th of each year, and are the owners of the right to the use of one-half of said waters during the period from March 1st to May 1st of each year and that said rights are prior and superior to any right to said waters which is owned and held by the plaintiff.

"2 — That the plaintiff is the owner of the right to the useof the waters of said Ross's Creek together with tributarysprings and seeps for the period from October 16th to but not including March 1st of each year and is the owner of one-half of said water during the period from March 1st to May 1st of each year.

"3 — That the plaintiff take and acquire by this condemnationproceeding in fee .24 cubic foot per second of the waters rising and flowing from said Ross's Creek and tributary springs andseeps and belonging to defendants as set forth in paragraph oneabove, and that the plaintiff pay as compensation to the defendants within thirty days from date of entry hereof the amounts ascertained by said verdict as follows: Flow of water taken — $125.00, damage to other water not taken — $550.00, together with interest on both sums at the rate of six percent per annum from the 15th day of July 1939, and together with costs of this proceeding." (Italics added.)

And in the instructions to the jury, the court charged the jury that defendants were the owners of the water taken by plaintiff into its pipeline.

In its construction of the court's findings, the prevailing opinion resorts to statements of the court delivered orally in announcing its general conclusion and decision regarding the ownership of the water, before submitting the question of damages to the jury. It has been established that the findings and judgment as entered control and that the oral pronouncements are not to be considered thereafter. Stevens Wallace v. GoldenPorphyry Mines Co., 81 Utah 414, 18 P.2d 903; Victor Gold Silver Min. Co. v. National Bank, 18 Utah 87, 55 P. 72, 72 Am. St. Rep. 767; Grand Central Min. Co. v. Mammoth Min. Co.,29 Utah 490, 83 P. 648; Utah Com'l Sav. Bank v. Fox, 44 Utah 323,140 P. 660; Miller v. Marks, 46 Utah 257, 148 P. 412;Headlund v. Daniels, 50 Utah 381, 167 P. 1170.

If the court was right in finding that the water of Rosses Creek was the property of the Nebekers, then he was certainly right in assuming in instructing the jury that such water as plaintiff took from Rosses Springs was Nebeker's water. Yet the opinion says the court was right in making the finding, and wrong in assuming the finding to be correct.

Under the law, what is the extent of Nebekers' rights in the waters of Rosses Springs? As indicated in the prevailing opinion, the waters here involved are waters of one of the tributaries of Peterson's Creek, sometimes known as Kings Meadow Canyon. These waters were the subject of litigation in Bastian v. Nebeker,49 Utah 390, 163 P. 1092. We quote from that opinion:

"Mr. Nebeker, immediately on taking possession of the land [about 1877] covered by the homestead, diverted thereon all of the water flowing in King's Meadows Canyon that was not lost by seepage and evaporation before it reached that point, and continuously * * * used it for irrigating his land and for culinary purposes."

Again we quote:

"In March, 1900, a decree was entered in the district court * * * wherein fifteen-sixteenths of all the water of King's Meadows Creek * * * were awarded to Nebeker * * * and one-sixteenth to Anderson."

Further on in that opinion, the court says:

"The evidence shows that plaintiff's trench or drain ditch situate just west of, and in close proximity to the natural water channel where the same passes through King's Meadows intercepts and carries to plaintiff's reservoir a substantial flow of seepage water. The seepage water is a tributary to the main stream used by the Nebekers, and the court erred in not awarding and decreeing it to them."

The land and water rights which Bastian owned in that suit was part of the early Nebeker land and water, and is called in this action the State Ranch, and is again the property of Nebeker, so he now has all the original Nebeker rights and holdings. Bear in mind that this is not a case where one makes an appropriation todivert part of the waters of a natural stream at a specified place. Such appropriator has no interest in the stream above or below, as long as he gets the limit of his appropriation at his point of diversion. This is a case where Nebeker appropriated the entire flow of the stream and all its tributaries at and above the meadows. The natural channels therefore from the source to the meadows were part and parcel of his ditches and conveying channels, and the waters thereof were no longer subject to appropriation as public water flowing in a natural channel, unless he failed to put them to a beneficial use. Malad Val.Irrig. Co. v. Campbell, 2 Idaho 411, 18 P. 52; Strickler v.Colorado Springs, 16 Colo. 61, 26 P. 313, 25 Am. St. Rep. 245;Bolter v. Garrett, 44 Or. 304, 75 P. 142, 143. He has an interest in the stream from his point of diversion to its source.Platte Valley Irr. Co. v. Buckers I., M. I. Co.,25 Colo. 77, 53 P. 334; Howcroft v. Union, etc., Co., 25 Utah 311, 71 P. 487; Midway Irrig. Co. v.Snake Creek M. T. Co., 8 Cir., 271 F. 157, affirmed260 U.S. 596, 43 S. Ct. 215, 67 L. Ed. 423; Stookey v. Green, 53 Utah 311,178 P. 586. As such sole appropriator of all the waters of the creek from its sources to the meadow, he was entitled to all the waters, although seeping or flowing underground, which were part of and tributary to the stream flowing in the natural channel above the ground. Alamosa, etc., Co. v. Nelson,42 Colo. 140, 93 P. 1112; Huffner v. Sawday, 153 Cal. 86,94 P. 424; Morris v. Bean, C.C., 146 F. 423; Id., 9 Cir.,159 F. 651, affirmed 221 U.S. 485, 31 S. Ct. 703, 55 L. Ed. 821. And any interference with any of such rights was an interference with and a taking of his waters. Whitmore v. Utah Fuel Co., 26 Utah 488,73 P. 764; City of Los Angeles v. Pomeroy, 124 Cal. 597,57 P. 585; McClellan v. Hurdle, 3 Colo. App. 430, 33 P. 280;Vineland Irrig. Dist. v. Azusa Co., 126 Cal. 486, 58 P. 1057, 46 L.R.A. 820; Kinney on Irrigation, 2d Ed., pars. 1161 and 802.

This is not a water rights action but a proceeding in condemnation. Sigurd seeks to condemn the rights of defendants in and to the waters of Rosses Springs. True, plaintiff contends that defendants do not own the waters of Rosses Springs. Plaintiff admits Rosses Springs are tributary of Peterson Creek, sometimes called Kings Meadow Canyon, but argue that at times the flow of the springs and seeps do not reach the Nebeker land, due to seepage and evaporation. There was evidence both ways on this question, but the trial court made findings — which are not assailed, and are approved by the prevailing opinion — as follows:

"That the waters of Ross's Creek, including the spring and seeps heretofore mentioned are part of the waters now and for more than 50 years last past used in connection with said lands * * * that because of said use * * * defendants * * * have become and now are entitled to the use of all of said waters." (Finding VI)

As shown above, in Finding VIII the court found that defendants' predecessors

"diverted all of the waters * * * on the surface and underground * * * including the springs and seeps known as Ross's Creek, all of which water * * * have been used by defendants." In Findings IX and X, quoted supra, the court again finds that defendants and their predecessors had appropriated "all of the waters in and near Ross's Canyon * * * prior to 1900, and continuously * * * used the same."

I am unable to discover how in the light of the findings, conclusions, the judgment and the instructions to the jury, unassailed and unquestioned by the prevailing opinion, this court can reach the conclusion therein set forth. Under such findings the trial court could not do otherwise than submit the question of damages to the jury on the basis it did use. This is a proceeding in condemnation. Once the court had found and determined that defendants owned all the waters flowing from the springs and seeps in Rosses Canyon, it must of necessity submit to the jury the question of damages on the theory that all the water taken into plaintiff's pipeline was water of defendants, and should be compensated for in this condemnation proceeding.