Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-02-26

Norrell. who In the district court rem
dered a decision which the Supreme
Court has overruled, had before him
not only the facts and arguments pre-
sentcd on both sides, but also the wit
nesses on whose testimony the facts
were arrived ht. He thus had personal
opportunity to investigate thoroughly
the circumstances and conditions sur
rounding the entire cnse, while the SUI
preme court had no witnesses before It.
and, therefore, could not as well de-
termine what was the prcponderance
of evidence MS could the trial Judge.
Now the question Is, did that testi-
mony show that the North Poin.
! Irrigation company had "a canal of
pure water. used for culinary and ir-
| rgation purposes" which was be
fouled and ruined by subsequent en-
terprise2" MOI The proofs were clear
and positive that the Surplus canal.
from which the plaintiff company
claimed right by contract to take
water was constructed for the pur-
pase of CARRYING of surplus waters
that inundated the southwestern por-
| lions of Salt Lake City. and that the
| drainage canal was also constructed
| for the express purpose Of draining
the lands lying in the wcatorn and
| southwestern portions Of Salt Lake
| county. II was for this rcnson that
salt Lake City and Salt Lake county.
as corporations, each contributed the
sum of $4,000.
| Ex-Mayor Armstrong testlfied to this
effect and also that the intent and pur-
| pose of constructing the Surplus canal
| was also to carry off sewage from the
city. Ex-Judge, Elias A. Smith testi-
| fled that the Investment In the drain
age ditch by Salt Lake county was
to relieve the lands above and adj
jacent to 1t of surplus waters, and of
draining n chain of lakes whose ma
tural flow was into the White Lake.
| Numerous wltnekses testified to the
same facts and 1t is matter Of public
notoriety that the Surplus canal and
the drain ditch were constructed at
considerable cost for these special
PURPOSES, and that they Were so used.
the drain ditch in May and the Sur
plus canal in June. 1896. Judge Norreli
so decided as he was bound to do
with the evidence before him. He de-
cided also that "the use of the Surplus
canal by the owners for the drainage
of lands along the Jordan river. as
expressed by the articles of incorpora-
ton. is n reasonable use and enjoy
ment of the property, and one as to
which the plaintiff cannot he heard to
complain, because II took. subject to
all the rights of said owners. If 1t We're
otherwise, then plaintiff by such action
ns this could and would defeat the
plainly expressed purpose and inten-
tion for which the owners of the canal
!
money
The plaintiff company claimed n
grant to take water from the Surplus
canal under a deed dated December 9th,
1856. The validity of that so-called
grant is disputed by the defendant
companies, but, as Judge Norrel de-
cided, If the alleged deed and grant
We're valid, " 1t is clear to the court
that plaintiff took under and subject
to all the rights of the owners of the
Surplus canal" So that instead OF "a
canal of pure water for culinary and
irrigation purposes" being "befouled
and ruined by subsequent enter
prise" the facts are that n canal con-
structed primarily and used continu-
ously for drainage purposes, was SUB
sequently tapped by company. the
successor of which now appears as
: plaintiff In this case. and claims that
i lands watered by its system are dam
aged by mineral deposits from these
waters. Thus the facts are the very
reverse of those set forth in the Trib'
une's query and II the decision of tn,
Supreme court was based on similar
misnformation. 1T is not entitled to b,
received with that "equanimity' which
the Tribune, the courts apologist
claims for 1t.
The truth is, that the lands which 1
is claimed are damaged by the waite
/, flowing from the plaintiff company
| system ana ODtdlneu Dy IL ITOin I'M
White Lake and the Surplus canal
contain in their own composition tn
deleterious substances which rende
them unfit for cultivation. This wa
y proved beyond n reasonable question
, by the testimony Of reliable witnesses
who attempted their cultivation a
long ago as 1860, when 1t was fount
that the first year fair crop could b.
produced. but subsequently the efiiores
cence became worse and worse, unit
nothing could be produced. and tn
lands were abandoned MS not beinl
worth the government price. 1t wa
shown that the application o
pure river water aggravated these con
ditions, bringing to the surface o
the land the mineral substances wit
which it was impregnated, and Their
d being no means OF drainage, there wa
g no remedy for the evil. These fact
a were testified to by such unimpeachabl
witnesses as A. F. Doremus, Geo. I
u Wallace, Walter Brown, James 7
y Cochrane. Ben Harmon, William SpiceI
+ William Crowther, Fred Schoenfeld'
"a Robert Hazen. William Langford, etc
~ corroborated by such competent chem
II lists as Professor Jos. T. Iiingsbury an
l. Professor Hirsching.
h The strong remarks which have bee
II made by persons who know of thes
facts are not surprising. when 1t
l. known that the defendant canal con,
/ DunlGS tHt use q
:, the drain ditch and Surplus cana
:, for the purposes for which they wer
- constructed, for at least ten year.
"a and are now required by decisio
of the Supreme Court to abandon sue
"a use and to fill up the drain ditch. fc
" the benefit of few individuals ownin
"a worthless lands. and who want to col
- lect damages from the defendant CON
70 panies. as is believed by many, to CON
~ pensate those few individuals for n
y, unfortunate and unwise investment
70 worthless acres.
II There is no desire to attack any jud
- cial dignitary or tribunal, or to indulc
= in "scandalous personalities" but III
- public mouth is not TO be muzZled an
Il the thousands OF bona fide settlers. VIII
a feel outraged by the latest declsio
y on this matter. are not to be silence
4, by any pretense of exalted sanctity d.
u signed to screen branch of the publ
service from deserved censure. The de
y cision of the Supreme Court affectin
l. the rights and property of great mas
3 OF the farming community and of res
* dents OF this city, is Of such a charat
l. ter as to render It not only "astouni
i ing" and disastrous" but to caus
y hosts OF people to question the cause
e that led to II and 10 express opinion
! No ho .,