Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-11-29
Right to Control Barton Greek
Waters Never Acquired,
RIGHTS OF MUNICIPALITIES.
Decision In Case OF John Fisher vs.
Bounfiml City - Other
Court Matters.

In an opinion handed down today the
Supreme Court holds that the right OF
a municipality to the exclusive control
and regulation Of water within It's lin
Its, TO which others have a paramount
right and ownership. ~ based upon the
consent and acQuiescence Of the owner
thereof"
The decision was rendered In the case
Of John Fisher and others VS. Bounuful
City, Charles r. Jones, recorder, and
Joseph l.. Holbrook, mayor. appellants,
and afiirms the judgment Of the Second
district court, Henry II. Rolapp, judge
THIS action was brought by plaintiffs,
and others beneflcially interested, who
sought to have the acts Of Bounuful
City IN controlling and distributing the
waters of Barton, a stream IN the
mountains east of Bountifuldeclar IL
legal. also that the action Of the city
council In leyying and assessing a tax
~ defray the expense OF regulating
the water, and the sale OF the plaintiffs
premises for taxes 80 levied upon, be
set aside as null and void, and that
plaintiffs title to the property be
quieted. The cause was tried before
Judge Rolapp at Pennington and Judg-
nent rendered In favor OF plaintiffs,
when an appeal was taken.
The question for determination was
whether Bountful city had the right
under the law 10 distribute and control
the waters OF Barton creek, and TO tax
the land Of residents TO meet the ex-
penses OF such distribution and control.
For thirty years prior to the ming oil
the action plaintiffs and their grantors
and predecessors In interest had used
the water for various purposes.
Bountlful City was Incorporated In
1898 but prior 20 this. the owners OF the
water had organized the Barton creek
Irrigation company elected their Of
fcers, levied assessments, etc. As soon
as the city was Incorporated IL as
sumed the control OF the waters, APP
pointed water-maSter levied tax as
sessments against the farms, Including
plaintiffs, but without the consent and
against the protest Of plaintiffs. Fish
CT refused TO pay the tax and his prop
erty was sold.
II was claimed by the appellants that
BOnntllul lily WAS lItNIlbi dAtl uilANA
chapter 4, Of the Compiled Laws Of 1855,
which provides for 'the construction OF
waterworks without the limits OF the
city, and gives certain jurisdiction over
the same"
The court finds that under section
1921 revised statutes. 1898, water
rights appurtenant to land pass by
deed with the land, unless expressly
reserved or may be treated as personal
property and separately conveyed
80 far as appears here the opin-
ion reads, THE water was an heridita-
ment appurtenant TO the land owned
by plaintiffs"
The court finds no evidence In the
record 20 Justify Il In holding that
plaintiffs had forfeited their rights Ia
the water. in fact" the opinion reads,
Their ownership and right 70 the land
and water Is unquestloned
Had the city taken possession ana
control Of the water Of Barton creek.
with the express consent Of the owners,
and then for seven years continued
such control, the court holds II would
have acquired title.
The court finds that the right con-
tended for by Bountiful was never
vested In It's city government,
Justice Miner wrote the opinion, and
was concurred In BY Chief Justice
Bartch and Justice Baskin.