Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-08-08

I timony was also stricken out. The de-
PENDANT then rested lis case and the ar
| guments We're proceeded with.
MIR. Sutherland opened the argument
for plaintiffs and stated that under the
agreement executed In 1883, plaintiffs
were entitled to exchange water from
the city equal TO S2la per cent of the
waters flowing In Parley's creek at the
clty's intake. The other 17la per cent
10 to go to other farmers not parties
TO the exchange The evidence goes
to show that on June 70 measurement
was made by the water commissioners
at the Intake, and on July 2 an esti-
mate was made by the board that
the stream flowed S,SO0,O0O gallons.
Hence the farmers are entitled to ex-
change waters until Aug. H. the date
OF next measurement, equal to S2la per
cent Of SS0OO00 gallons, or 100000 gal
Ions per day.
According to their own testimony
said Mr. Sutherland, they cOncede that
they are short 4.0O0,OOO gallons In sup
plying the water, and that, too, includes
the spring water which flows fully L.
600 900 gallons and TO which we contend
the city has no title or right what
ever.
Under the agreement when the city
falls to furnish the farmers their pro-
portion Of water they can after II
hours notice, retake the waters Of Par
ley's creek, The evidence shows that
such notice was given but that when
the plaintiffs attempted TO retake the
water they were prevented from SO
doing by members Of the clty's police
force and the superintendent Of water
works. An injunction suit was brought
to prevent the city from interfering
with the plaintiffs IN retaking the wat
er. II is contended by the city attor-
ney that an injunction is not the pro-
per remedy, That the court will not,
by an injunction, take property from
the possession Of one party and place II
in the hands OF another. In this case
there Is no possession the water Is
not I'm the city's pipes. We ask that
they be prevented from allowing more
water to flow into their pipes and do
not ask TO take water from them.
take 1t that the authorities have set
led that point, that there is, as In this
case, no possession. hence an injunction
is the proper remedy. Counsel also
contends that the plaintiffs can esti
adequate remedy at law There is alb
solutely no way by which the damages
to plaintiffs can be estimated In dol
lars and cents and contend that by
the failure OF the city to live up to its
contract the plaintiffs have suffered
irreparable injury and hence the In
junction should be granted"
Atty Ray Van Colt, on behalf Of
81 IA ,af
authorities to show that an Injunction
was the proper remedy. He argued
that the plaintiffs were not confined
merely to an action for damages but
were entitled to an equitable relief to
prevent the city from causing further
damages II an action for damages
was the proper relief he said that a
multiplicity OF suits would ensue be-
cause there were 300 farmers interested
In this case and each would have to
bring separate action.
Judge Morse stated that he was of
the opinion that the question Of dam
ages could not be considered in the
matter of a temporary injunction in
this case and II was needless to present
further authorities or arguments on
that point.
City Atty. Nye then made strong
argument on behalf Of the city. He
stated that, at most. all the relief
plaintiffs could ask for at the pres
ent time Is for relief until Aug 10, !
when the next measurement Is TO be |
made. Any change that IL made row, |
he argued would be ineffective after |
that date because a new standard |
would then be fixed. Counsel for plain |
tins say that the city ordered plain |
tins off its premises. The city attor- |
ney was Of the opinion that the city |
had a perfect right TO order them Off.
They are seeking" said Mr. Nye |
"for am affirmative remedy by means |
of n preventive action. ! contend that |
the Injunction is not a proper remedy |
They should have brought their action |
for n mandamus TO compel the city 10 |
al its contract by turning the water
down past the intake. II the city |
Is prevented, by an injunction, |
from preventing plaintiffs from taking
possession Of that water then II VIII |
become necessary, after Aug 10, when |
1 new measurement Is made and the
,ity will be able to meet It's contract |
according TO such measurement for the |
,Ity 10 ask that the injunction be dis
solved, and ! do not think that such a
burden should be placed upon the city.
they should have sought for a proper
.emedy and they have not done it, so
contend that their bill should be dis
missed and the injunction denied"
Attorney Sutherland made 2 few re-
marks in reply. after which Judge
Morse stated that he would examine
he authorities submitted by the atior-
,eys and would take the matter under
ldvlsement until tomorrow morning at
o O'clock