The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-07-02

important case of Salt Lake city and
county and a number of canal COM
panies, appellants, VS.. Joseph H Col
iadge and about three hundred other
residents in the neighborhood of Utah
lake. The opinion, which was deliv-
cred by Justice Bartch and concurred
in by Chief Justice Zane and Justice
Miner reverses the judgment of the
lower court and remands the case with
instructions to correct and modify the
decree in accordance with the ruling
| of the supreme court.
THE CASE STATED.
In 1885 the canal companies, Salt
Lake city ard others entered into a
J contract with the owners of land on
the borders of Utah lake to maintain
Utah lake as a reservoir, and the
/ plaintiffs, in accordance Herewith put
! dams in the Jordan river by which
the water was raised to a certain
height. In 1893 the residents of the
lake shore became dissatisfied, al
leging that the dams maintained the
water at higher level than the con-
! tract provided for. and that as a con-
sequence their lands were flooded and
they instituted damage suits against
Salt Lake city and county and the
canal companies. The plaintiffs then
entered suit in equity for the purpose
of having it legally determined as to
what height the water under the con-
tract might be maintained. The con-
tract also provided that the plaintiffs
had the right to dredge the bottom Of
the river so as to permit more rapid
flow and to secure to themselves a
more reliable supply of water by
being able to draw it from a lower
level of the lake during the dry sea-
son. When the plaintiffs suits were
entered a commission consisting of
two to represent the plaintiffs and
one disinterestad was appointed to de
termine at what season of the year
boards might be put into the river to
maintain the water to the level speci-
fed in the contract.
The court below decreed that the
plaintiffs had the right to maintain
obstructions in the dam to the height
of fourteen inches above the floor of
the dam. The plaintiffs and appel
lants contended that they had a right
to maintain distractions to a height of
twenty-five inches.
TWENTY-FIVE INCHES ALLOWED.
On this point the opinion reverses
the lower court and finds that the
appellants were right in their conten-
d
In this connection the opinion says:
That plaintiffs in the years 1883,
1889 and 1890 removed bars and other
instructions which naturally existed in
the bed of the Jordan river at the new
dam, and at the point known as New
Bar, in the neighborhood of one mile
above the dam, erected by said plain
tfffs in said river, and in such removal
removed permanent natural obstruc-
tons then in said river above said dam
and permanently lowered the bed
thereof fourteen inches, thus increas-
ing the capacity of said river and
thereby ena bling said plaintiffs to
utilize fourteen inches more in depth
Of water of said lake, over the entire
surface thereof, in seasons of low wa
ter. That said plaintiffs, by reason
of the removal of said bars and other
obstructions to the depth aforesaid,
are entitled to at all times keep and
maintain planks or other distractions
on the floor or sill of the dam erected
by them TO the height of fourteen
inches above the floor or sill of said
dam and no more, and the court finds
that said planks to the height of four
teen inches above the floor of the new
dam are no more or greater obstruc-
ton to the flow of the water than
We're said bars and other natural OBJ
structions before their removal, as
aforesaid. The floor of said new dam
is found to be six inches lower than
the top of the sill of the old dam as
fixed by said contract
''On the facts thus found the court
decreed that the plaintiffs are entitled,
TO at all times keep and maintain
planks or other instructions or the
floor or sill of the new dam erected by
them in the Jordan river, to the height
of fourteen inches, and no more. 1t
is difficult to see by what process of
reasoning such a conclusion was
reached.
Counsel for the respondents have,
in their brief, attempted an explanation
of it, but to say the least their argu-
ment, in the face of the record and the
above finding, is far from convincing
and is quite unsatisfactory to us.
Here is an express finding that the
plaintiffs had actually lowered the new
bar to the depth of fourteen inches,
and because thereof was entitled to
utilize fourteen inches more in depth
of waters of said lake. over the sur
face thereof, and that the top of the
sill of the new is six inches lower than
the top of the sill of the old dam, which
was fixed by contract. 1t appears from
the evidence that the sill of the old
dam is eighteen and half inches
lower than the new bar was before it
was removed and the new dam being
above and six inches lower than the
old, how can the plaintiff utilize four
teen inches more of water over the
entire surface Of the lake, if they be
limited to fourteen inches of obstruc-
ton on top of the sill of the new dam?
That water seeks its level is a self
evident proposition, and thus the sill
of the old DAM being six inches higher
than that of the new, the effect is to
neutralize six of the fourteen inches of
distractions which the decree permits
to be placed on top of the sill of the
new dam, which practically is to allow
the plaintiffs but eight inches of OBJ
structions. This is so manifestly err
or inadvertence on the part of the
court in entering its decree, notwith-
standing the views of counsel for the
respondent to the contrary In con-
formity with the finding of facts the
court ought to have allowed twenty
instead of fourteen inches of obstruc-
lions to be placed on the top of the
sill of the new dam. Such would be
the inevitable result from the finding
of facts quoted, but the appellants in
sist that they dredged the river and
lowered the river bar more than four
teen inches; that the facts found re-
specting this point are not such as the
evidence warranted, and that they are
entitled to maintain in the new dam
at least twenty-five inches of obstruc-
tons. Upon careful examination of
the whole evidence we are bound to
admit the correctness of this position"
NO DEFINITE DATE TO REPLACE
BOARDS.
The remaining material question in
this case is whether the Utah lake
have authority. under