Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-03-16
WATERS OF SALT CREEK |
JUDGMENT OF LOWER COURT IS UPHELD


The Supreme court delivered an
opinion today In the case of John
Hague vs. the. Nephi Irrigation Co. APP
pellant. affirming the judgment OF the
lower court.
Proceedings In this case arose over
the use of waters of Salt Creek at
Nephi Hague claiming u right to It for
manufacturing purposes and the de-
PENDANT the right to divert portion
of II for irrigation purposes.
The history of the case is an inter-
esting one. II shows that the town of
Nephi was settled In 1851 by nineteen
families, and the year following the
waters Of Salt Creek was diverted
fit of the settlers.
In 1852. a man named Baxter, Hague's
predecessor in interest, built grst
mill. locating II on the stream above
all the points where water had been
diverted. The next year trouble was
had with the Indians and Baxter was
compelled to move his mill into town,
which he did, locating 1t on ditch.
In 1854 he reconstructed the mill and
obtained n right of way to carry the
was moved from the ditch and con-
nected with the stream. Hague bought
the place in 1862 and Mt that time two
bitches used for irrigation and culinary
purposes had been taken out above the
mill but the water to supply II was
permitted to flow down the stream
and. after passing through 1t, was
diverted and used for the purpose OF
irrigatlng large body of land. For
several years past the defendant irri-
CATION company refused to permit
Hague TO use the water and also as
serted Its right to change the place of
use and to divert such water above
the mill as 1t saw 1T and whenever IL
choose to do so. This. of course. pre-
vented the operation of the mill when
Hague brought suit Judge Higgins,
before whom the case was tried decid-
Ing In Hague's right to the waters for
mill purposes.
The defendant insisted that plaintiff
had failed to set out Il cause OF action
IN MS complaint and that its demurrer
to the same should have been sustained.
The court finds. however, that owner
ship, invasion of right. and injury were
clearly and distinctly alleged
II the defendant desired a more spr-
cific and definite allegation of owner
snip, the court says its proper remedy
was by pleading. Having failed In
this It can not now be heard on thar
question
"The object and intent" says the
court, under the law, in diverting
water must be TO apply 1t to some use
full purpose. and II, by means of
bitches, more is diverted than is nee
essary for such purposes, the excess
cannot be regarded as n diversion for
Il useful purpose, for as matter of fact.
such excess merely runs to waste and
its diversion cannot result in a vested
right If thprafnra A m nd
intends to irrigate but one acre of land.
diverts all the water of natural
stream which Is sufficient to irrigate
two acres, he obtained a right only to
sufficient water to irrigate two acres,
and b., who also owns an acre, may
appropriate the excess. If. In this
arid region, the law were otherwise II
would be menace to the best interests
of the State as well as to its citizens.
because II would enable few individ-
uals. or association OF individuals, by
diversion OF water in access of use. to
greatly limit the area of the public do
main which could be cultivated, and
thus deprive the State of its revenue.
and citizens of homes within its
borders"
1.-THE intent to take and appropriate
and the outward act go together. II
we concede that man has right be
mere priority to take as much water
from a running stream as he chooses
to be applied to such purposes as he
pleases. the question still arises, what
did he chose to take? And this depends
upon the general and particular uses he
makes of 1t. II, for instance. a man
takes up water to irrigate his meadow
at certain seasons, the act of appropria-
ton, the means used to carry out the
purpose. and the use made of the
water. should qualify his right of APP
| preparation TO u taking for a specific
purpose, and limit the quantity to that
| purpose. or to 80 much as necessary
for It," tOrton va Dixon, 10 cal. 34.)
The court also cites another case re-
ported In 81 cal. 2s2. which says, 1.-THE
doctrine is that no man shall act upon
the principle of the dog In the manger.
| by claiming water by certain prelimi-
nary acts, and from that moment pre-
vent others from enjoying that which
he is himself unable or unwilling to en-
Joy, and thereby prevent the develop
ment OF the resources Of the country.
The appellant cites other errors in the
| proceedings but the court finds no
reversible error and aiiirms the lower
courts Judgment.
Justice Bartch delivered the opinion
which is concurred In by Chief Justice
Zane and Justice Miner.