The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-04-25

Judge NorreH Yesterday handed down
his decision in the case of the North
Point Irrigation company against the
Utah & Salt Lake Canal company and
others, in which his honor denied the pc
tition of plaintiff for writ of injunc-
non restraining the defendants from dis
charging waste and befouled waters into
the surplus water canal or into the canals
or bitches of the plaintiff and compelling
the defendants to abate the nuisance
caused thereby by filling up and ceasing
10 maintain the artificial channel from
Decker's lake into the surplus water
canal, and compelling the defendants to
return the waste water into the Jordan
river. Plaintiff also prayed for $OU,UJO
damages.
The opinion says: I'm the first place,
the writ prayed for in this case Will be
denied because the action of the board
OF directors of the Surplus Canal COM
pany of February q, 1886, is void, there
being no person in law to take under
it. even if il had been in the shape OF
q deed properly attested, because plain
tiff took its privilege subject to all the
rights of the Surplus Canal company to
use its ditch for the purposes for which
il WAS built. and also subject to defend
ant canal company's rights which are
prior rights to plaintiff privilege, be-
cause said canal companies have used and
enjoyed the right TO discharge drainage
water into the surplus canal for the per-
iod of seven years adverse to Dla1ntiff,
because the damage alleged has not been
caused by the water of defendant : ditch.
and because these defendants were only
exercising the lawful use and enjoyment
of their property without negligence or
malic-
1T was a reasonable use and enjoyment
of their property that the owners of the
surplus canal were making when they
used it for drainage and permitted drain
age water to pass through ii from the
lands it was intended to drain. Conced-
ing that the plaintiff was granted the
privilege to take water from the sur
plus canal by that company, there IS
nothing in the deed that changes or cur
tails the powers or rights of the Surplus
Canal company. On the other hand, 1t
imposes 7ditionai obligations upon the
plaintiff. here can be no doubt from
the testim that the main feature OF
the incorpI ion of the Surplus canal
company an the construction of its
canal was the drainage of the western
portion of Salt Lake City, and the lands
along the Jordan river
There can be no reasonable construc-
ton given to the deed of December >,
1856 which could in any way change the
rights of the Surplus Canal people. 1t
made no guarantee of either quantity or
quality of water to be taken by plaintlH,
and plaintiff received only the privilege
to take water with full knowledge OF the
rights, intention and purposes of the Sur
plus Canal people.
NATURAL DRAINAGE TO WHITE
LAKE.
The opinion then discusses in detail
each point in the case, and the argyll
meat IS supported by numerous authori-
ties 1t is shown that the natural drain
age of the lands about the lakes south
OF White lake was north and into said
lake and that turning the drain water
from the defendants ditch into the sur
plus canal was only carrying out the
oris nal intention of the canal scheme and
giving effect TO the purposes for which
= vas constructed. it being clear TO the
court that the plaintiff took under ana
subject 10 all rights OF the surplus canal
The court also held that the defendants
had the prior right to the Use OF the sur
plus canal for the discharge OF water
from their drain ditch and had held and
used it ever since June. lsS6; that the
defendant canal companies had made
prudent and careful use of the waters
COM eyed through their canals, and That
They were not required by law TO convey
the drainage water into the Jordan river
WHITE LAKE DOES THE DRAINAGE.
In regard TO the contention of plaintiff
t1,.t it IS damaged by the great abund-
ance of mineral salts and deleterious mat
Ter contained in the waters of the drain
ditch and that the effect of this water
when applied for irrigation purposes is
II steriiiZe the land and destroy crops, /
TIE opinion says that the proof shows
that the water of White lake has mucn I
lar--er percentage of saline matter than
the water of the drain ditch, and that I
tsis water has always been unfit for II
] alton or culinary purposes. and the
conclusion of the court was that II IS
the water of plaintiffs own source of /
sgDply that sterilizes the land and de- I
stroys the vegetation.
NO PUBLIC NUISANCE.
As 20 the question of public nuisance. |
ne court held that such a state of facts ,
has not been shown as would make it a 1
public nuisance. and that plaintiffs own |
action is one of the chief causes of what |
ever nuisance there exists.
IMPORTANCE OF THE DECISION
The importance of the questions decided /
by this decision is apparent from the fact
at they involve, to some extent, the |
ri.-ht of the city and county TO use the
Surplus canal for drainage purposes,
" INCH is a subject of great interest at the
resent time. 1t also determines the
right of the defendant canal companies
10 dispose of their drainage water. they
having expended nearly half a million
collars in building canals which, with
,cir laterals, are over 200 miles long.
acres of orchard. about 200 miles of shade
Trees. and supply water for domestic use
and irrigation to about 5000 people.
The plaintiff. the North Point Console
5sted Irrigation company. was represent
I'd bv Attorneys L. W. Taylor. c. T.
Loofbourow and John NJ. Zane. The de-
rendants, the Utah & Salt Lake Canal
company, South Jordan Canal company
3nd the North Jordan Canal company,
we're represented by Richards &; Richards
- Attorney Mckay appeared for the
.ity and Assistant County Attorney G..
f. Putnam for the county.