Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-04-24
THE SURPLUS CANAL
To b Used In Carrying OF High
Water 10 The Lake.
so DECIDED ny JUnGg SoRRELL


Judge EorreIl gave Ills decision to-
day Ia the case OF the North Point
Consolidated Irrigation company We
the Utah and Salt Lake Canal com.
psny ct al. denying plaintiffs aYplioa.
ton for writ Of Injunction, which in
fleet holds that the surplus canal
was built for drainage purposes as con-
tended for by the deionuant,.
The court room was crowded with
attorneys and persons Interested In the
case, and his honor was listened 10
with the greatest OF attention during
the giving Of the decision.
His honor began by expressing his
regrets that other duties prevented his
giving an earlier conclusion, Contln.
uing the court said:
In the frat place the writ prayed
for In this case will be denied, because
the action OF the board of directors OF
the Surplus Canal company OF Fsbru.
airy 9Th, 1885, 10 voiu, there being no
| person In law to take under 1t even
| II 1t had been In the shape Of deed
properly attested; becsues plaintl II
took Its privilege subject to all the
| rights OF the Surplus Canal company
to use its ditch tor the purposes for
which 1t was built, al d also subject to
defendant canal compsny's rights
which arc prior rights to plant IL.
privilege; because said canal compA-
MES have used and enjoyed the rig nj
to discharge drainage water into the
surplus canal for the period OF seven
Year, adverse to plaintiff; because the
damage alleged has not been caused
by the water Of defendRnps drain
ditch, and because these defendants
| were only exerclsing the lawful use
and enjoyment of their properly
without negligence or malice. 1t
was Reasonable use and enjoyment
Of their property that the owners OF
the surplus canal were making when
they used 1t for drainage and per.
mitted drainage water to pass through
II from the lands 1t was intended to
drain. COnceding that the plaintiff
was granted the privilege to take
water from the surplus canal by that
company, there Is nothing in the
deed that changes or Curtails the
powers or rights OF the Surplus Canal
company and on the other hand, 1t
imposes additional obligations upon
the plaintiff. TheTe can be no doub /
irom the testimony that the main
feature OF tae Incorporation OF the
Surplus Caual company and the COL
slruction OF its canal was the orainsg .
OF "lhe western portion OF Salt Lake
City and the lands along the Jorusn
river"
There can be no reasonable conetruc.
Ion gwen TO the u,eu OF December
OH, 1886, which could In any way
change the rights OF the Surpius
Canal people. 1t nude no guarantee
OF either quantity or quality OF water
to be taken by plaintiff, and plaintiff
received only the privilege to tax,
water with Iull knowledge OF the
rights, intention and purposes OF the
surplus Canal puop,e.
The openion then discusses In dc.
tail each point In the case, aud the
argument 10 supported by Numerous
authorities. 1t IL shown that the
natural drainage OF tho lands about
the lakes sUuth OF White Like wss
north and into saiu lake, tnl
that turning the drain water from the
ueiendan ts' ditch into the surplus
canal was only carrying out the
original intention OF the al scheme
ana giving effect To the purposes ioI
which 1t Was conetructeJ, II being
clear to the curt that the plant Il
took under and subject 10 all rights oil
the surplus canal. The o0urt also he d
that the defendants had the prior
right to the use OF the Surplus Cana
for the discharge Of water from thei
drain ditch and bod held and used II
ever since June, 1886; that the delenG.
ant canal companies had made Q
prudent and careful use Of the wateii
conveyed through their canals
and that they were not r,quiret
ty law to convey the urain
age water into the jordan river