The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-07-23

In the case Of John Manning ct al.
appellants. VS.. Joseph Fife ct al, the
supreme court yesterday handed down
an opinion, written by Chief Justice
Zane and concurred in by Justice
Bartch reversing the judgment and
decree of the trial court and ordering a
decree to be entered in accordance with
the principles enunciated in the opin-
ion. The appeal was from a decree
dismissing the appellants bill for an
Injunction and awarding costs against
them. It appeared that the Riverdale
Bench Canal company. one of the de-
PENDANTS. appropriated in 1865 is 6i-l0O
second-feet of water and has been en-
titled to that much ever since; that
the Hooper Irrigation company lower
down the river, appropriated in 1857
1l5 LOO second-feet; that the Wilson
Irrigation company, at point still
further down. in 1870, appropriated 80
second-feet. and the Davis County q
Weber County Canal company, at a
point four miles above the point OF dl-
version of the Riverdale Bench Canal
company, also made an Appropriation
later than either of the others. In pursu-
ance of an agreement between the Xiv
erdale Bench Canal company and the
Davis 6, Weber Canal company, the
former closed its headgate at the We
Der river for five days. and the latter
company, on the same days. turned
into its canal from the river Is 67-100
second-feet of water; that all the land
800 acres-that could be irrigated
from the Riverdale Bench canal was
sufficiently irrigated when it shut the
water out of it's canal, and that the
Riverdale Bench Canal company. by
lot
did not, to any extent, injure the
crops growing on the land irrigated by
it: that during the same time the
crops and trees growing on the lands
irrigated from the plaintiffs canals
were greatly injured and damaged, be-
cause the water left in the river was
less than they had appropriated, and
not sufficient to irrigate the lands I'M
der their canals during the same five
days.
The Riverdale Bench Canal company
claimed the right to close its gate at
the river and to allow the Davis 81
Weber County Canal company to di-
vert from the river into it's canal
Is 67-100 second-feet of water, though
there may not be enough left to fur
nish the plaintiffs the amount of water
appropriated by them and to sufficient
ly irrisate the lands under their canals;
while the plaintiffs deny that claim
and insist that they are entitled to so
much of the water appropriated by the
Riverdale Bench Canal company as it
does not actually use. The difference
between the quantity of water the
Riverdale Bench Canal company ap-
propriated and the quantity actually
used and necessary for the purposes
of its appropriation, the plaintiffs in
sist, was surplus water and was theirs
to the full quantity of their appropria-
ton, If they needed it; that the first
appropriator had no right to deprive
them of it by wasting it. or giving it
away, or turning it to a company or
other person whose appropriation was
subsequent to theirs. and for whom it
was not appropriated by the first ap-
proprietor.
The question presented was. Does
an appropriation of water from a natu-
raj source of supply, when there are
subsequent appropriations, who need the
water and actually have less than the
quantity they appropriated. have the
right to divert it to uses other than
those for which it was appropriated, by
giving ii away or wasting it?
The lower court held in the affirma-
tive and refused the injunction prayed
for, while the supreme court held the
reverse. and that the trial court erred
in making its conclusions of law and
in entering a decree denying a writ of
Injunction, and dismissing the COM
plant