Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-11-29
Right to Control Barton Creek
Waters Never Acquired.
RIGHTS OF MUNICIPALITIES.
1souotiRi city o. Oiher
Court Matters.

In an opinion handed down today the
Supreme Court holds that the right 81
municipality to the exclusive control
and regulation OF water within Is iim-
Its. to which others have "a paramount
right and Ownership. l. based upon the
consent and acqulcsccncr 81 the owner
thereof
The decision was rendered In the case
Of John Fisher ana others W iiountlful
City. Charles II. Jones. recorder. and
Joseph J.. Holbrook. mayor. appellants,
and aiilrms tho judgment Of tho Second
district court. Henry II. ilolnpp. judge.
This aotion was brought by plaintlns,
and Others bcncncially Interested. VINO
sought TO have the acts ~ Bountiful
city In controlling and distributing the
waters Of Barton, a stream In the
mountains east Of Bountifui declared H.
legal. also that the action " the city
council In lcvying ana nHaeEninR q tax
" dcfray the expense Of regulating
the water, and the sale ~ the platinum =
PREMISES for taxes 80 levied upon. Dc
set aside ns null and void. ANA that
plaintins title TO the property Dc
guieted. The cause was tried befofr
Judge Rolnpp at Pennington and Judg-
ment rendered In favor OF plaintinA
when an appeal was taken.
The question for determination was
whether iiOuntlfui city had the right
under the law TO distribute and control
the waters OF barton creek, ana to tax
the land Of residents 10 meet the cN-
pcns.H Of such distribution and control
For thirty years prior To- the Ming of
the action plaintina and their Rrnntora
and predecessors In Interest had used
the water for various purposes.
Bountifui city was Incorporated Ia
1898. but prior 20 this the owners of tho
water had organized the Barton creek
Irrigation company, elected their Of
nccrr. levied assessments, etc, A. soon
as the city was incorporated " a.
sumcd the control of the waters, APP
pointed u water master, levied tax as
easements against the farms, Including
plaintiffs. but without the consent and
against the protest Of plaintiffs. Fish
Ct refused 10 pay the tax and his prop
cry was sold.
II was claimed by the appellants that
Bountiful city was Incorporated under
chapter T. 81 the Compiled Laws OF ISIS,
which provides for ''thc construction Of
wnterworks without the limits OF the
city, aud gives certain Jurisdiction over
the same
The court finds that under section
i.2si revised statutes. 1855, water
rights appurtennnt 90 land pass by
deed with the land. unless expressly
reserved or may be- treated az pcrnonal
property and separately conveyed"
80 far as appears here" the onin-
ion reads, 'thc water was an heridlta.
mcnt appurtenant TO the land owned
by plaintiffs"
The court finds no evidence In the
record 10 Justify II In holding that
plaintiffs had forfeited their rights In
the water. I'm fact" the opinion ruadai
Their ownership and right To the land
and water II unqucHtinncd."
Had the city taken possession and
control Of the water NJ 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 hnda that the right con-
tended Tor by hounuful WAS never
vested IN Its city government,
Justice Miner wrote the opinion, ana
was concurrcd In By chief Justice
Bartch and Justice HaHkn.