The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-05-19

pany ct al, which was tried a few
weeks ago and taken under advise
ment. In substance the finding is that
Ogden City is entitled to such portion
of the old system of waterworks as re-
mains, and to the water rights and to
whatever revenues may have been de-
rived from the old system since its
transfer to the defendants or their
predecessors in interest. The defend
ants are entitled to the new system
built by them. Ogden City, under its
charter, has authority to grant fran
chises to other parties to furnish water
to the city and its inhabitants.
THE DECISION.
The full text of the opinion is as fol-
lows:
In this case I find from the evidence
that Ogden City is municipal corpora
ton existing under the laws of Utah.
That the Bear Lake x River Water
works & Irrigation company is a private
corporation organized under the laws of
Utah, as is also the Bear River Irrigation
* Ogden WaterworkS company.
That the latter company after its
organization on the LIST of September. 1894,
succeeded to all the property rights and
franchises of the Bear Lake & River
WaterworkS & Irrigation company, as al
legged and set out IN the pleadings.
That by an ordinance of the city coun-
Gil of Ogden City passed September 2,
1884 il was thereby ordained that certain
property, water rights and franchises
designated as the ogden City Water
works was and should thereafter be
the property of the town, for supplying
il and its Inhabitants with water as they
might require, such property having been
heretofore acquired by the town by
purchase. at cost to it, of more than
$74, 900.
That thereafter for more than six years
the town by its proper officers remained
in possession of a WaterwOrkS system
which from time to time was extended
seven miles of intake" pipes and fumes
from sources of water supply from Ogden
river and from creeks in Strong's can
yon and Waterfall canyon in the noun
tains east of Ogden, and about II miles
of "diStributive' water mains and pipes
laid in the various streets of Ogden, and
as many as IS hydrants and other usual
appliances of a gravity water system by
which cities and towns may be supplied
with water for public and private uses,
and that the cost to the city of the water
system and its extensions up to and in
Guiding the year 1889 was about S110000
That I'D TO about the month of October,
1880, the town supplied itself and its in
habitantS with water from such system,
and for which the town collected water
rates and dues from its inhabitants. and
that the net income therefrom. in 1889
and 1880 was as much as $4,000 per an
mum.
That in the month of August, 1889 John
r. Boutwell, entered into a contract with
Ogden City by which ne bound himself
to put in the town water system of
much greater capacity and dimension
than that owned and operated by the
town, and the town on its part bound
itself to lease to Boutwell, for ST. the city
waterworks for the full time that Both
well should furnish water for the town
and its inhabitants by means of the
water system which he was TO put in as
before stated.
The contract contained other terms not
necessary To be here noted. This con-
tract and all rights. franchises and prop
erty conveyed 10 Boutwell,, was after
wards assigned by him and his assigns
to the Bear Lake & River Waterworks
& Irrigation company. and was there
River Irrigation & Ogden Waterworks
company
THE NEW SYSTEM.
That a new system of waterworks was
built under the Boutwell, contract super
Tor IN capacity to that of the Ogden City
waterworks, and at much greater ex-
pense TO Boutwell, and his assigns, and
by which supply OF IL cubic feet of
water per second was supplied 10 ogden
CITY, and its inhabitants. instead of
about 81 cubic feet per second under the /
town system. nearly a fve-fold greater
supply of water from that source. but
such greater supply included also the
" cuolc rect per second formerly used
and enjoyed by Ogden City through its |
water system from Ogden river
ne dlstributlve system of the defend |
ant company in the town of Ogden is
II miles of the former or town system. |
and the expense of putting in the new !
system was 100000 and upwards.
The evidence seems to show however
that this expense account is implicated |
or involved in some degree with the ex-
Dense of making a canal system for the |
irrigation of considerable tracts of land
IN the valleys north of Ogden City
ne pleaQlngS and evidence show /
further that there was considerable /
public necessity for a better water sup |
the Boutwell, contract was entered INFO. /
than was afforded by the old system.
That IN the month of October 1890 the 1
system under the Boutwell, contract, was /
not completed. and on the 4th day of !
that month the city council of Ogden I
passed the following resolution:
re II resolved by the city council of 1
Ogden City that said water system .
(meaning the city's water SYSTEM he 4
turned over to the Bear Lake q River 1
Waterworks company on October q, 1880. /
under the terms of the contract with |
Resolved. That in turning over to the
Bear Lake River Waterworks com f.
pany the present Ogden City waterworks
system, 1t is distinctly understood and .
agreed that none of the stiDulations or .
made and entered into in the
contract heretofore made with them
snail be waived or forfeited in any
respect"
That thereupon. on the 9th of October.
lSO the waterwOrks company took
actual occupancy and control of the old /
system, and used it in connection with
the partially built new system till the
following April or May of 1891. since
which time it has never been used by the
water company.
That after the first of January. 1891. the
water company. with the KNOWLEDGE and
consent of the city authorities took ont
the water gates valves, crosses and
u S. so called, from the city's water
system, and disposed of them by sale.
thereby dismantling and DESTROYING the
Did system, and the water company and
he city authorities also permitted much
II the underground pipes and mains of
he old system to be removed and an
,urther destroying and rendering the svs-
EN- utterly useless
A THREE-FOLD PURPOSE.
I find from the evidence that the Both
Well contract and the resolution of Oct.
, 1880. and the subsequent acts of the
water company and the city authorities
Is hereinbefore stated and set out. were
made and done with at least d three-fold
purpose and intent, namely:
t1rst-That thereby the city intended to
luthoriZe the water company to con-
truct and maintain a waterworks in
ogden City TO furnish larger and bet
er supply of water to Ogden CITY and its
as under the charter of the
own the city council might well author
re and grant.
Second-The better to enable the water
works company to raise money in the
market upon its bonds and securities nv
living 1t a perpetual monopoly to furn-
sh water to the city and its inhabitants
Third-The parties intended by this
transaction that the old system should be
estroyed. and thereby the city should
e forever disabled. by means of that
ystem or otherwise from furnishing