The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-05-26

Judge Street yesterday delivered
judgment in the case of the North
Point Irrigation company against the
Utah and Salt Lake Canal company,
Salt Lake City, Salt Lake county ct
al, which was tried some weeks ago
and submitted.
The plaintiffs allege that they own
certain rights to water from the Jor-
dan river and the right to conduct the
water through a ditch known as the
surplus canal from the river at point
near the south line of township
south, range l west, northwesteriy from
the river The plaintiff also claims
ownership of an extensive system of
irrigation bitches northwest from the
surplus canal, by which water is con-
veyed from the river upon the sur
rounding lands. The defendant COM
panies, it is stated, own and operate
system of canals south and west of
the plaintiffs canals and that the de-
PENDANTS take from the Jordan river
more water than they require, and that
large amount of waste water is turn
ed upon the neighboring alkai lands,
thus forming succession of lakes and
sloughs filled with alkali water, and
that defendants have drained these al
kali waters into Decker lake, so be-
fouling the waters of that lake that
they are unfit for irrigation or culin-
airy purposes, and that to make mat
ters worse the defendants. it is alleged,
have conducted the befouled waters of
Decker's lake into the Surplus canal,
befouling the canal also.
The county and city of Salt Lake are
made party defendants for the rea-
son that, as alleged, they have some
interest in the surplus canal and have
assisted the other defendants in wrong
fully conveying the alkaline water into
Decker lake.
The plaintiffs claim they have by the
acts complained of been damaged in
the sum of $4,000, for which judgment
is prayed Plaintiffs also ask that the
defendants be enjoined from continu-
ing the acts complained Of, and that
they be compelled to conduct the water
of Decker lake into the Jordan river.
JUDGMENT OF THE COURT.
The court in delivering judgment
held that the grant made by the Sur
plus Canal company to the North
Point Irrigation company included the
right of f1owage of the surplus waters
of the Jordan river from that natural
waterway or through the artificial
waterway or canal of the surplus COM
pany into the canal of the North Point
company. and that to the extent of the
actual appropriation and use by the
Surplus Canal company of the waters
of the Jordan river. existing at the
time of the grant, the North Point
Canal company acquired the right to
the use of the Jordan river water flow
ing through the surplus canal. His
honor also held that the Surplus Canal
company retained as against the North
Point company the right TO the ditch
or canal itself and this constitutes the
ownership of the land itself comprising
the ditch and is not mere easement
or incorporeal hereditament; that the
North Point Canal company and its
successor, the plaintiff, owned and
owns such a right of property in the
waters of the surplus canal after di-
version of such waters from the Jor-
dan river at the head of the canal;
that a right of action would immedi-
ately accrue against any person di-
verting other waters intot the channel
of the surplus canal even though such
waters were fresh and fit for irriga-
ton; that the defendant canal COM
panies have not established any right
as against the plaintiff to discharge
the waters of the drain ditch, whether
fit for irrigation or polluted. into the
Surplus Canal company's system the
waters of which are legally under the
control Of the plaintiff by virtue of it's
grant from the Surplus Canal COM
pany. The opinion concludes as fol-
lows: Having control of the head
gates of the surplus canal system and
the headgates of it's own canal system
and having appropriated irrigible
waters of the Jordan river which it
can use, the plaintiff could absolutely
control the flushing of the system and
use the waters whenever fit, but for
the flowage of the drain ditch which
always must add factor over which
control is not vested in plaintiff and
the waters of which might and pro-
badly do and will add pollution of a
character dangerous to irrigation and
absolutely prevent control of the char
acter of the waters of the canal by
plaintiff Plaintiff has a right of pro-
perty in the waters of the surplus
canal and the injury is direct and
vital to the right of property. The
rights being defined the injury estab-
lished and the probable continuance
thereof being shown, the court has a
plain duty and the temporary injunc-
ton pendente lite is granted restrain
ing the defendant canal company from
using the drain ditch in question to
discharge waters into the surplus canal
system Any evidence objected to by
defendants and not relevant, compe-
tent and material to this decision is
stricken out and the court will make
specific rulings if desired.
LAS to the defendant, the city of Salt
Lake, it does not appear that any re-
lief against it is appropriate. AS to
the county of Salt Lake it appears
that it assisted in reconstructing the
drain ditch in 1891 and while the ques-
ton of drainage is not here pertinent
! the injunction relief can properly be
had against this defendant in so far as
use of the drain ditch is concerned
Ten days stay was granted the de-
PENDANTS to prepare a Statement on
appeal.