The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-05-10


final hearing, Richards & Richard.
and Brown & Henderson appearing a.
attorneys for the said plaintiffs, ant
Williams, Van Colt & Sutherland ap
pearlng as attorneys for the said de
PENDANTS, and testimony having beer
duly introduced and considered, anC
the case having been fully argued
and taken under advisement, now
after due consideration, the court
finds the following facts:
First-That Little Cottonwood is q
natural stream of water situate il
salt Lake county, Utah, rising in the
mountains in the eastern part of said
county and fed by melting snow
springs rain and mountain lakes, and
the whole of said stream was undi-
Vided and Incorporated for any
purpose in the beginning of the year
eighteen hundred and forty-eight
Second-That said stream is fiuc-
tuating in the amount of water that it
carries and furnishes in the different
seasons of the same year and in the
different years; generally the said
water reaches its lowest stage in jan
uary, and part of the time gradually,
and part of the time rapidly, increases
/ in quantity until about July l or 2,
when it gradually decreases.
Third-That in the year 1S4S and in
each year thereafter until and includ-
ing the year 1886, the water of said
stream was first diverted, used and
appropriated as a primary water right
for agricultural, domestic and culinary
purposes by the said defendants and
their predecessors in interest during
each and every year, and in the year
1856 all the wafer of said stream was
appropriated for the purposes afore-
said by the said defendants and their
predecessors in interest, and the whole
of said water then was, ever since has
been, and now is reasonably necessary
for such uses and purposes.
Fourth-That the primary water ap-
propriated by said defendants as
aforesaid amounts to one hundred and
eighty-five and thirty-one one hun
dredths QS5.3D cubic feet per second.
Fifth-That in the year 1856 all the
water of said stream was divided
amongst the following five original
bitches in the following proportions,
to-wit: Tanner, twoninths; Walker,
one-ninth; Richards, one-ninth; Ca
hoon & Maxfield, two and one-half
ninths; Union & Jordan, two and one
half ninths; and said water has been
attempted to be divided in the same
way each year since 1856, and the said
defendants are the owners of such
water, except as hereinafter men,
toned.
Sixth-That the said plaintiffs and
other persons own equally and jointly
with said defendants for agricultural
and domestic purposes a quantity OF
water from said stream equal to, but
not to exceed, what the said Desplaine
ditch will now carry without waste;
and said plaintiffs and other per-
sons are entitled to said guam
tity of water between May %
and July % of each year. but
neither of said plaintiffs either own or
are entitled to any water from said
stream at any other time of the year
for any purpose.
Z. That said Despaine ditch was con-
struoted in about the year 1879, and it
and now is of the same size and ca
pacity, is of a permanent character,
and naturally so remains.
s. That neither of the said plaintiffs
has had either the open, peaceaible, con-
tinuous and uninterrupted use, or the
notorious, visible or adverse use of
any of said stream of water either for
seven years or for any period of time
whatsoever, except as to the said guam
tity of water they own; on the con-
trary, the defendants and their prede-
cessors in interest have several times
each year interrupted any use by the
plaintiffs Of said stream of water, other
than said water so owned, between
May % and July % of each year.
That when said plaintiffs have had
water in said Despaine ditch at any
other time than between May % and
July %, it has been either under the
permission of said defendants or with
curt their knowledge or consent.
8. That the water in said stream in
said plaintiffs their said ditch full of
water and also to furnish the said
defendants their one hundred and
and thirty-one one-hun-
dredths QS5.3D cubic feet per second.
10. That neither OF said defendants
in any year or at any time between
May % and July % of each year have
with or interrupted or
threatened to interfere with or inter
rupt the flow of said quantity of water
in said Despaine ditch.
CONCLUSIONS OF LAW.
From the foregoing findings of fact
the court finds the following conclu-
sions of law:
1. That said plaintiffs own and are
entitled TO the use of water in said
Despaine ditch between May % and
July % of each year, to the extent of |
what said ditch will now carry with
out waste; and said ditch shall not be |
in any manner enlarged.
2. That said defendants own and are
entitled to use all the other water of |
said stream at all other times of each |
year; and defendants primary water
right amounts to one hundred and |
and thirty-one one-hun-
lredths C1S5.3D cubic feet per second.
8. Whenever the water in said stream
'alls below the said quantities to which
the defendants and plaintiffs are en-
titled, then the quantity remaining
should be divided in the same proper
ion between plaintiffs and defendants.
4. That the said defendants never
1T any time interefered with said
luantity of water in said Despaine
itch between May % and July % of
ZACH year.
5. That said plaintiffs are entitled to
10 other relief in this action and the
preliminary injunction heretofore is
ued should be dissolved.
g. Neither the plaintiffs nor defend
-nts should recover costs, except as to
he reporters fees, of which the plain
ifs should pay one-half.
LIE GRAND YOUNG, Judge
Dated May T. 1896.
BUILDING Permits.