The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-04-29
IMPORTANT MINING CASE
DECISION IN FAVOR OF SILVER
CITY COMPANY.
Plaintiff Did Not Abandon Its
Wheeler Location-Irigation Gases
From Cache and Wasatch Counties
Price Water Case Reversed
Ogden Police Case.

court yesterday affirmed the decision
of the lower court in favor of the plain
tiff
The defendants located a new claim
called the Little Clarissa on the plain
tiff's Wheeler claim. Between the time
of location of the Wheeler and that of
the Little Clarissa a third claim called
the Evening Star had been located on
part of the same ground, and the own
ers of the Wheeler failed to protest
when an application was made for
patent This, the defendants claimed,
was in the nature of a judgment rem
dered in favor of the Evening Star, de-
claring the Wheeler location null and
void. However, a new location and dis
covery had in the meanwhile been made
by the Wheeler people, and new shaft
sunk inside the Wheeler, but outside the
Evening Star, and this was ascertained
and developed prior to the Evening Star
application for patent.
The opinion, which is by Justice Bas-
kin, holds, in effect, that in the cases
Of conflict. failure to protest against an
application for patent by one property
hoes not necessarily constitute an
abandonment by the other party, and
decides that the court below properly
held that the Wheeler claim had not
been abandoned by the plaintiff pre-
vious to the location of the Little Clar
issa.
Chief Justice Bartch and Justice Mi
ner concur in the opinion.
The decision is quite an important
one to mining men generally, and it is
understood that the case will be taken
to the supreme court of the United
States for settlement. Powers, Straup
& Lippman and Brown & Henderson
I'D 10 lafa, Nor
& Narian and Williams, Van Colt &
Sutherland the plaintiff.
Irrigation Decision.
A decision was rendered by the su-
preme court yesterday reversing the
judgment of the lower court in favor
of the defendants in the case of Alma /
Harris VS. the board of trustees of the |
Logan irrigation district.
Mr.. Harris sued for a writ of man |
date to compel the trustees to file a map |
with the Cache county clerk showing /
the location of the Logan and Bensin |
canal, and to compel the board to take |
charge of the canal and to distribute its /
waters to the plaintiff and others inter- |
ested The upper branch of the canal |
was constructed after the organization |
of the irrigation district, but since then !
the trustees have levied taxes on the !
lands on this branch and water rights
We're apportioned along it, Until 1898 I
the trustees exercised jurisdiction over
the branch, and then majority re-
fused TO do so, and refused to file a
map of the branch or to control or su-
perVise it
The plaintiff contenGed that the board
could not arbitrarily establish limits of
a canal system and deprive stockhold-
erS. who pay taxes, of the advantages
of the district organization.
The opinion, which is written by Chief
Justice Bartch, holds that notwith- i
standing the repeal by the revised stat
utes of the act under which the dis
trict was organized, it still continues in
force as to all districts organized by
virtue of the statute prior to such re-
peal. The trustees should have MAIN
tanned control of the whole district and
had no authority TO assume manage
ment of one portion and not of another
AS the boards refusal to control the
portion of the district in controversy
affects the rights of the plaintiff and
others who own land in the district and
pay taxes for the maintenance of the
system, the court holds that the trus-
tees ought to be compelled by man
damuS to perform their duty, and the
lower court erred in denying the writ
The judgment of the lower court is
reversed, and the case remanded. Jus
tees Miner and Baslxin concur.
Wasatch County Case.
Judgment of the lower court for the
defendant in the case of the Center
Creek Water & Irrigation company VS..
John A. Thomas was affirmed by the
supreme court.
The plaintiff company brought action
against the defendant to restrain him
from interfering with the waters of
Center creek, in Wasatch county. Mr..
Thomas and his predecessors in inter-
est had used the water of the stream at
Eigh water in irrigating twenty acres
of land, and the lower court granted
him enough to water eighteen acres of
land. The appeal was taken on the
ground of insufficiency of evidence.
Chief Justice Bartch wrote the opin-
ion. He finds that there is ample evil
dsnce to support the decree. and holds
that there is no reversible error in the
record. The judgment is affirmed.
Justices Miner and Baskin concur.
Price Water Case
The trial courts decision for the de-
PENDANTS in the case of Clarence Marsh
ct al VS.. II. @. Matthias ct al and the
Price Water company was affirmed by
the supreme court yesterday. The plain
tiffs sued to have it adjudged that the
Price Water company, of which all :
parties TO the action are stockholders,
is not a corporation, and that the
stockholders of the company be de- :
Ciartd tenants IN common OF the COM i.
psny-s irrigating ditch. In the lower /.
court plaintiffs were non-suited. ::
Chief Justice Bartch. in writing the /,
opinion, states that there were techni-
cal errors and carelessness shown in :
drawing up the articles of incorpora- :
ton. but as a bona fide attempt was
made by the parties to form such cor
poraoon, and all parties acQuieSced in /
the acts of the corporation for a per-
iod of some length. he holds that it is
a corporation de factO. if not de jure. ,
Fraud and acts of illegality were also
alleged in altering the bylaws of the :
corporation 1t appears that some
changes were made. and the minutes
of the meetings when this was done
the motions affecting the bylaws, were
marked carried" These reformed by
laws had been in effect for some years
and the stockholders had never doubted
their validity. No fraud is found, and
the judgment is affirmed.
Justices Miner and Bartch concur in
the opinion.
Ogden Police Case.
the supreme court yesterday affirmed
the judgment of the lower court for the
defendant in the case of Henry T. Sny-
der VS.. Harriet S. Emerson, auditor of
ogden City. Snyder sued for $113.69 as
salary as night jailer of that city from
Jan. % to March 81, 1898. Snyder was
appointed by the board of police and
fire commissioners. and after the abol-
ishing of that board by the code he
was superseded by w. +. Critchlow. an
appointee of the council The court
holds that he was not a de i1rra oficar