The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-03-27

al, appellants, reversing the order OF
the district court appointing Thomas
d. Dee receiver of the defendant COM
pany's property, and remanding the
cause with directions to order a return
of the property to the Bear River IT.
rigation and Ogden WaterwOrks COM
pany, and awarding the appellant its
costs.
The opinion was written by Chief JUS
tice Zane and concurred in as to the
result, multiplying the order appointing
the receiver, by Justices Bartch and
Miner.
A more important point than the
mere question of whether or not the
plaintiff is entitled to a receiver is
ruled upon in the opinion, that is, that
the contract made on Aug. 6, 1889, by
which Ogden City transferred its
waterworks to John r. Boutwell,, the
in interest of these defend
ants, is void, because the contract and
was made without special stat
utory authority being conferred on the
city authorities so to do. On this point
Justice Bartch is silent, while Justice
Miner thinks the point at this time is
not before the court and that decision
thereon should be withheld until after
the final hearing of the case on its mer-
it's. Justice Miner also says that he has
serious doubts as to whether an ap-
peal from an order appointing a re-
ceiver will in all cases lie, under the
previous decisions of the court, and he
expressly refrains from asserting to the
doctrine laid down by the chief justice
upon that subject.
STATEMENT OF THE CASE.
In the opinion the case is stated in
substance that on July 16. 1884. the
ogden Waterworks company conveyed
to Ogden City the waterworkS system
for a consideration of $74,364.50 and on
Aug. 6, 1889. the right TO furnish water
to the city was conveyed, or at
TO he conveyed, by the city
to John r. Boutwell,; also the use Of
the streets for the purpose of laying
water pipes: and Boutwell, was also to
have the water rights owned by the
city at an annual rental of 81, as long
as he furnished water through the sys-
tenn for municipal purposes.
Bothwell's rights under the above
agreement were transferred to the Bear
Lake and River Waterworks and Irri-
cation company, and by it again trans
rerred to the Bear River Irrigation and
Ogden WaterwOrks company. The lat
ter company spent more than 1857 ,925. so
IN improving the system and has re-
ceived S22, 500 annually in rents for
water delivered in the cithy. After the
had been in possession from
October, 1880, the plaintiffs, on July 10,
1897, entered suit praying that it be de-
,lared the owner of the entire system
and to have the defendants enjoined
from collecting any water rents from
water users and for an accounting for
rents previously collected. The ground
OGDEN
City had no power to convey it's water
system to Boutwell, or any of the de-
PENDANTS or to lease it's water rights,
he same having been dedicated to the
use of the public. Plaintiff also urged
hat in case the transfer was held to
be valid, that the defendants had not
complied with the conditions of the con-
tract.
On Jan. 4, 1898, the plaintiff filed a
complaint, asking for the
of a receiver. Judge Ro-
app granted the petition and ap-
pointed Thomas d. Dee as receiver.
rom which ruling the defendants took
his appeal.
OPINION OF THE COURT.
Zane, C. j.. after stating the case sub
as above, delivered the opin-
on of the court as follows:
The respondent insists that the order
appointing the receiver is not a final
Judgment within the meaning of section
}, article S, of the constitution of this
state. That section declares that from
Ill final judgments of the district court
here shall be a right of appeal to the
court"
The Bear River Irrigation & Ogden
company had been in the
ictual possession of the water system and
he business transferred to the receiver
~ the order. more than seven years be-
ore the order appointing the receiver. and
lepriving it of it's possession of the prop
,rtY and the control of the business was
made. The order determined finally the
lights of the parties to the possession of
he property in dispute and the control of
he business, during the tendency OF the
suit, and the right to collect all demands
lue and TO pay all liabilities incurred,
vas also given to the receiver during that
ime. When the court shall finally de-
ermine the rights of the parties with re-
;pect to the property and business, and
rider them turned over to the one ad-
judged to be entitled, the order appoint
ng the receiver will be recognized as
binding; IL will not be modified. added to
" changed. Before that time the receiver
nay collect and add to the fund.- pay out
portion of it, and he will then deliver
md transmit whatever remains to the
person found to be entitled. The order
when made was final, as TO the appoint
nenI OIL the receiver NO
# the court was contemplated with re-
pect to it,. Errors, if any. in the order.
an only be reviewed on an appeal from
l. 1t would be idle to review such errors
Lfter the duties of the receiver shall have
,een Standardization the order shall
AVE spent its force. Any injury to the
)arty entitled to the benefit of the possess
ion and the business during the litiga-
ion, will have been sustained before that
ime. and errors, if any in appointing the
eceiver, will have accomplished their af-
ects. BY it important rights were taken
rom the defendants. the Bear River IT.
or the injurious consequences OF which,
T erroneous there can be no redress
Without appeal from the order.
In determining whether the order is
lpon the rights of the parties rather than
he stage of the litigation at which it
vas made. While some of the authorities
fearing upon the question cannot be
sconciled. we are disposed to follow those
Importing an appeal in cases like this,
hey appear to be supported by the bet
er reasons:
Barry VS. Briggs. % Mich. 200.
Brown VS.. Ring. a Mich. 49,
Lewis VS. CamDau. IA Mich. ass.
The appellants insist that the order ap-
Ointing the receiver appealed from is
rroneous: that the court was not au-
horized under the pleadings and the evil
ence TO make the order. They rely upon
he contract of August 6. 1889. between
he city OF Ogden and John Il. Boutwell,.
nd the transfers by which it came to the
Scar River Irrigation & Ogden Water
forks company. and the resolutions of the
ity council Of October 4. 1892 purporting
o tnrn over and transfer to the Bear
AXE & River Waterworks company the
,gden City Waterworks system. They
nsist that thereby the latter company
btained the title to the Ogden City
system. and the right to fur
ish water to the city and its inha bitants,
nd the use of its streets for water pipes
nd lease for the fun time that Boutwell,
+ his assigns should furnish water
Trough the waterworks system for mu-
icipal purposes. While the respondent
laims the waterworks system and the
rater. the right to which is in dispute
-as dedicated TO the usa of the public and
nat the city authorities could not trans
pr il to Boutwell, or to the defendants.
r either or any of them. without the