The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-11-30

/ Incorporation of the city in 1898. plain
tiffs and other owners of the stream in
question, associated together in the
name of the Barton Creek Irrigation
, company.
On and after the incorporation of
Bountiful City the municipality as
sumed the right to control and dis
/ tribute the waters of Barton creek and
/ levied an annual farm assessment
against each farm using the water, in
Guiding that of plaintiffs. This pro-
ceeding was protested by the plaintiffs.
During the years of 1894 TO 1897 the
city assessed and levied a tax of Is
cents per acre on each acre of John
Fisher the plaintiff. He refused to
pay this tax and as a consequence his
property was advertised and sold to
the defendant, Holbrook, and a deed
| thereof ordered to be issued to the
purchaser by City Recorder Charles
r. Jones.
1t was conceded at the trial that the
proceedings relating to the tax levy
and subsequent sale of the property.
were Illegal and that if plaintiffs
owned the land their title should be
/ quoted therein. The dominion and
right to the use of the water and con-
troll of it for irrigation purposes was
vested in the plaintiffs by their ap-
preparation of thirty years previous
and they could not be deprived of such
right except by their voluntary act.
No Right to Supply.
In the opinion of the supreme court;
Had the city taken possession and
control of the water of this creek with
the express consent of the original
owners and appropriations, and for more
than seven years continued such con-
troll, possession and distribution there
of fn mis- orr ha
maintained adverse possession thereof
for seven years, it would have ac-
quired right thereto as against the
owners. under the decisions in Spring
vile VS.. Fullmer. Holman vs. Pleasant
Grove and Smith VS.. North Canyon
Water company, but this was not
done. The right of a municipality to
the exclusive control of water within
its limits, to which others have para
mount right and ownership, is based
upon the consent and acquiescence of
the owner thereof
Accordingly the judgment and de-
cree of the district court is affirmed
with costs.
Justice Miner is the author of the
opinion which further bears the sig
natures of Chief Justice Bartch and
Judge Baskin.
Another Affirming Opinion.
Another opinion was affirmed by the
supreme court in a decision handed
down yesterday in which Ole Larsen
ct al. appellants. and Charles Onesite,
respondent, held in dispute the posses
sion of a strip of land of lot l, block
Il, five acre plat "A Big Field survey,
which the complaint alleges plaintiffs
to have been the owners and in pos
session of since March s. 1879, and that
defendant has been the owner of lot
90, in the same block since July Z, 1884.
The contention arose over az dispute
as to the location of the north line of
the lot in dispute and the questions
arising under the answer and proof,
wherein it is claimed that the res
pondentS have been in peaceable and
continuous possession of the land for
twenty-five years.
1t appears. from the testimony in
the trial that for upwards of twenty
years prior to the trial. during the
ownership of a Mr. Young, a ditch
had been dug along the north line of
lot ]. and the south line of lot 20 and
brush fence constructed along the
fence and ditch: and the owners of lot
/ occupied and used up to the south
line and no dispute arose concerning
it. Twelve years prior to the trial.
plaintiff built a board fence along the
ditch which was treated as the line of
the property until two years prior to
the trial when the services of a sur
veyor We're enlisted and the fence sub
sequently torn down and both plaintiff
and defendant proceefed to pull down
and erect fences at stated Intervals. on
what they deemed the proper lines.
The court below found in favor of the
defendant; an appeal was taken on
the ground that the court refused to
grant a new trial when it was stated
that the plaintiffs were in possession
of new evidence However. yesterday
the supreme court found that Judge
Hiles. who tried the case, had rendered
a correct decision.