The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1902-08-07
CITY DEFENDING
INJUNCTION SUIT
contest on For Control Of ParIey's
Creek Water For the Pipes.
FARMERS SCORE A POINT
nTFENsE PREFERS DAMAGES TO
LOSS OF WATER.
FARMERS SCORE A POINT

-HE hearing of the suit of the COM
pla!ning farmers residing south
Of town against Salt Lake City
t,- an Injunction to restrain the munic-
i,s1ftv from using any of the waters of
Psrley's canyon occupied the attention
yesterday Of Judge Morse in the dis
t-irt court. and when adjournment was
taken at 8 o'clock the plaintiffs side of
the case had not been concluded. In
caurt the contest was fought by At
tornev George Sutherland for the
farmers" and by City Attorney Nye
m behalf OF the municipality. After ad-
iournment it appeared that the COM
nlsluing side had scored the few points
Gained BY winning the overruling of
the demurrer interposed by the city,
and showing from the testimony that
they are not getting the quantity OF
water in exchange guaranteed them
under the contract. The defense will
have an inning today.
Immediately after the opening of the
,o5rt City Attorney Nye started pro-
eeedings by stating that he had filed
an answer to the complaint and a de-
murrer. but as the latter, in a measure,
covered the former. and would decide
some of the leading issues of the case,
nc elected to take up the demurrer
drst. which sets forth that the COM
ulaiut Of the plaintiffs does not justify
either a temporary or a permanent in
junction. because it fails to show ir-
renarable injury to plaintiffs if the in
iunction be denied. The demurrer fur
ther alleges that the complaint fails 10
show that plaintiffs cannot be ade-
auately compensated for their dam
ages. that the damages sustained by
the wrong complained of cannot be
mes sured by pecuniary standards; that
she parties defendant in the suit are in
solvent and incapable of responding to
damages. and. lastly. that it fails to
show that the Injunction, if granted,
would not result in greater injury to
the city and its inhabitants than would
result to plaintiffs. if denied.
City Damaged Most.
In support Of the demurrer City At
torney Nye contended that the injury
20 the farmers" is but slight. which is
verified by their asking only 5000 dam
ages, and that the city is at all times
willing 10 make good any injury. In
well directed words the city attorney
called the courts attention to the fact
that If the injunction be granted, the
60 600 inhabitants Of the city will suffer
irreparable damage, while in the other
event the 300 farmers" would suffer
comparatively little-at any rate not
more than can be estimated by a jury,
and compensated for by the city.
City Attorney continued that plain
tiffs have at best alleged breach Of
contract between themselves and the
city, and called attention to the fact
that the farmers have not offered TO
restore to the city the canal water
which they secured in exchange for the
parley's canyon flow. The city attor-
ney reiterated that the case is not one
for Injunction, but that the proper pro-
cedure of the farmers is to Institute
damage proceedings
In answer, Attorney Sutherland stat
ed that under the terms of the agree
ment of exchange the plaintiffs agree
10 use canal water only so long as the
city lives up TO its part of the agree
ment, and as soon as the municipality
fails to perform its obligations the
farmers" have a right to take back
the Parley's creek water.
Irreparable Injury Alleged.
Referring to the irreparable damage
sustained by the farmers" Attorney
Sutherland contended that the growth
Of crops and fruit in Sugar and Farm
CTS ward. has been so retarded that
there is no way of estimating the dam
age, hence il is iTrepara bic. The attor-
noy continued that under the contract
of exchange the farmers" after twelve
hours notice OF default to the city, can
rctake the water without an action of
law. Such notice. Attorney Sutherland
claimed, was served on the city. but
Lot
armed men, prevented the farmers
from taking their rightful claims. Since
that time the city has remained in
wrongful possession of the water,
which, in time. will Tipen into a right.
Under the circumstances, the attorney
thought the farmers had a right to
an Injunction, and asked to have the
demurrer overruled.
Without comment Judge Morse over
ruled the demurrer, and ordered the
hearing Of evidence.
Land and Water Commissioner
Fisher. the first witness, testified that
ne, with the other two Parley'S canyon
commissioners. took the last measure
ment July >. when they agreed on s.
No.O00 gallons daily as the quantity of
Water to be furnished the farmers
MI the next measurement. TO be taken
Aug. Is. On the former date. the COM
missioner continued, the city was able
To furnish the farmers only 1900. 600
gallons daily from the canal. This in
creased slightly till July is, when the
supply dropped to 100000 gallons.
Then followed a slight increase. after
which, on July %. the flow from the
canal dropped to $500, 600 gallons, which
continued till the filing of the suit.
John GabbOtt, one of the plaintiffs,
Vas the next witness, and testified to
Inc damage resulting on his farm Jo-
Sepa Powell, John F. Howells, James
Briggs and James Johnson, all farm
ers. testified on similar lines. All were
unanimous that they had sustained in
Jury through the deficiency of water
nut none would deny that the injuries
sustained were due to shortage OF
lrons. not amounting TO a complete