Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-02-12

cided That no legal grant had passed
from the surplus canal to the North
Point Irrigation conlauy; that ovon
u such A 'leud had pagspd. tire plaintiff
took Us privilege subject TO Gll tho
rights Of the defendant companies; that
the defendant companies had used ana
enjoyed the right to discharge drdinag.
water into the surplus canal for the
period NJ seven years adv,rsc "a plain
IN, aud that this WIS Il lawful use and
enjoyment of their own property, with
out negligence or malice; there could
lie no doubt from the testimony that
the main feature Of the incorporation
~ the surplus Canal cnmr1uy and the
construction Of its canal, WIS the drain
age OF the western portion OF salt Lake,
city and the land along the Jordan
river. that this chief purpose was
known To the plaintiff and that any
privilege Granted to .dltc water from
the Surplus canal was subjcc first and
always 10 the conditions for which the
canal was constructed. The court fur
ther held that the water accumulated
In the respective lakes which have been
{ 4. was not surplus water. but
I water that had come down into them
| and the low basin about thcm from
springs. pcrcolltiun ana sccrnge, from
the high lands above; condition in
evitahe from any irrigation system;
that water hPd been running into those
lakes and basins for many Years. and
| following the natural drain-way to the
/ White Lalie. on to Smith Lake and
| finally into the Great Salt Lake. IL
! was not water that had run to waste.
1 hut that which had been formed after
| the prudent and careful exercise ot
the defendants lawful right 10 SO use
it, and such as was excepted by
statute from the penalty for form
| ing pools and marshes" That there
! was n distinction between drain
| age and surplus water. The testimony
! showed that there had never been any
| surplus water from the defendant COM
I panies canals. but that they had
( never been able to secure suihciency
/ of water for irrigation purposes. Thc
only surplus water from those canals
! passed out south of the Sandridge, and
| was conveyed back into the Jordan
! river The canal known as the surplus
! canal and the drain ditch from Decker
| Lake into White Lake were construct
| ed for drainage. to carry OF seephse
/ and water from springs and precipita-
ton md not surplus water. and the de-
| PENDANTS had right to discharge it in
| TO White Lake, through its natural
| drain way, and To aid the flow by
| means of artificial channels. The de-
! PENDANT companies had openly Contin-
! ued the use of these avenues for peri
/ cd of ten years. under Il claim of right
| adverse to plaintiff, and II was too late
| now for plaintiff to complain. The pre-
! ponderance of evidence, the court said,
went to show that the enlargement of
the drain ditch. in 1891, complained of
| by the plaintiff was simply a cleaning
! out of the ditch by removing the grass
! and vegetation that had grown up and
the earth that had dropped into 1t from
the crumbling banks, and that the
ditch was not made wider or deeper
than the original ditch. As to the
damage from the abundance of dele
/ T..tV
| tins land, the court decided that this
was due, not to water from the drain
ditch or the Surplus canal. but from
the natural condition of the soil and
the water placed upon 1t by the act of
the plaintiff and that such nuisance as
had been caused in the neighborhood
of the White Lake was brought about
by plaintiffs action, and this being so.
the plaintiff could not come into a
court Of equity and demand an ahate-
ment Of that nuisance by the defend
ant; that the defendants could not be
answerahle in damages for n reason
able exercise of Il right accompanied by
a cautions regard for the rights Of
| others, without negligence aud without
malice. The court denied the issuance
of the writ The language used by
Judge Norrell was clear and emphatic.
and left no point of the controversy
uncovered.
An appeal from this decision was
taken by the plaintiff to the Supreme
court of Utah. with the result that
! this court. not having heard the tes-
4, timony of witnesses and of experts.
| apparently ignoring the prior rights of
the respondents. seemingly not recog-
nizing the purpose and object for which
the Surplus canal and drainage ditch
We're constructed. and in face of the
fact that the occupers OF about %, 900
acres of tillable land, on which are
their homes and improvements. would
of necessity be greatly damaged there
by, granted the application of the APP