Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-07-29
LOWER COURT AFFIRMED
LITIGATION WAS OVER RR.GArBG DITCH.
opinion b, Chicf Justice zanc Defondan
winters Divorced rive Year Ago
Wants the Decree M1dinsd.


chief Justice Zane delivered an opln.
I,a today ln 90. ense " Hiram Yeagor
.peAnt vH Emma B. Woodruff et al.
luimirg tha judgment Of the court
below
Plaintiff sought q writ ~ injunction
tqlifng ihs l,fsadHnts 10 remove Ger.
ialn alleged 0tstruru0nH in an lrriga-
ton ditch uun also o. 0hloiu them from
ohfifucjinF o. Gov UI water through
th. suWH Co YrlgUrE llud.
IN, case wac hHnrl before Judge
liiiof who. on tho pieulIngs and PROOF
submitted hy both lufiIrr. liamifH.d
10 with cuHta to the defendants From
this judgment YonEer appealed,
The facts lf the caso ace suu5inuiinl'
ly lH follows For .unu prior Go llal,
Wlifntd Muudrun owned Two luta or
ground 0f nVc acres each. bounded ga
the west hy Fourth East street. uu ga
east by Fluh East street, Hu thH a1uih
by Eleventh south street. and uu th
north BY a i've acre tract owned ug
ffMau Woodruff. bio brother Both
l,tH were irrigated by thu wat'rH uf
pnrIoya canyon. a ditch ran along
the west side 90 Fifth West street 90
the southeast corner ~ Asmnu wood
runs Dot ana another ditch running
from Fifth East and Eleventh South
streets Co the southwest corner ul Dis
iot.whlch was Irrigated from those two
ditcher. 10 also appeared that VIII
ford woodruff had had constructed Cd
ditch from Eleventh South north Go a
point near tho middle of biz lots. Cor
hiB own private use. About the year
ts1g or istn. Henry a Woodruff. Hun
u Asman Wodrun. rented Wilfofl
Woodruff place. for the purpose 'f
farming 10. and aa be- was also trndinf
hif fathers place nt the rnmH time, or
talutd permission from Wiliufd Wood
run 10 extend The irrigation ditch
oil hIH fathers lot. which he
IId. Henry Woudrun'H toHti-
mlny. which was borne 1ut by other
WItnorifs and unc1ntriiirCl. show -
that the privilege was granted aim ny
Wllflrd Woodruff, Who sald II dldnt
make ans difference i0 him, AZ Ions a.
% didn't Iuterftre with anything Il
was understood 90 be temporary
matter and AHman Woodruff never
ribIm.I any lrter.at To- the dteh. iu
1874 Asmln woodruff sold bis iut Co
tn appellant. Hiram NaaErr, Wnu cuu-
t.uusd fl run water through ihc same
ditch i.. the year 1898, The grantees
10 Wiif.Fd Woodruff, WHO are ihr
respondents To- The ease, then had th,lr
land undivided and nllfl 90 che ditch
running through ihsr l1ts. opening
another dlt.h about six rods wrai nf
tn Old one. YoErr refused tn take
water through th. new ditrh and
brought Hult % .nl1ln respondents
from closing up the Old one, AciFtr
r.Ftrd bis case upon hH r.fht o. th1
lIHh hy adverse p1fs,rslln aui ln-
,utai inc dlgirHg ~ ,f.Ippel
thlf justice I4nU D ida that 100 uls
. i. d.
must. i. be hostile. under claim 1f
right, 2, actual. o open and notorious,
g. continuous 1. o. further hold th4t
the right given Amin Woodruff 90 "a.
tend his brathDfH dllin and take water
through 10 90 lrrIgato his lana was
without any confederation, and Was "a
mere license. which The latter had the
right % terminate 40 any time.
'rhe decision concludes ua f1ll0wTi
IT h also urged that MILFORD Wood
run II rHtupprd from denying appel
lhn'a claim 90 the uHe " the old ditch
because ~ his conduct n does not
appear that h. said or ala anything
10 mlsleid appellant The appellant
saw, when h. bought the land. that thu
/ ditch VAS On Wliford Woodruni'n land.
ana ha should have Inquired by what
right 10 was used FOR the benefit ~ the
land he purchased. N the appellant
had inquired ~ Woodruff. the owner uf
th' land ON which the ditch was locat-
ed, a. o. his right 10 Use the ditch,
and the owner had said or done any
thing 60 miHlcnd him aa 90 his rights.
the case would have been quite diner-
ent
~ docs not appear that wllford
Woodruff was present when appellant
purchased hla land, OF that he knew ui
| the transaction.
''rhe facts nfe not such a. 90 create
an eHtnppol In part or Otherwise
Judge Zane then orders au Anirma.
ton uf tho Judgment ~ the loNei
court
Justice Miner cnncurT In the iulf
ment. except reference 10 the h1ldlnr
under one ~ the sections nf me ~
| vlsad statutes quoted, District IudT'
! Hart also conCurH.