The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1904-01-24
USE OF CANAL
CAN BE FORCED
Farmer Can't MonopOIize His
Private Ditch.
MUST GIVE RIGHT OF WAY
COURT DECIDES IMPORTANT r.
RIGATIoN QUESTION.
MUST GIVE RIGHT OF WAY

The arid condition of the west is such
hat a farmer can invoke the law Of
eminent domain to condemn a right Of
ray through an irTigating ditch over
3djoiniug or intervening lands for the
purpose OF conveying water necessary
or the successful prosecution of his en-
erprise. That is the essence Of one Of
- most important irrigation decisions
s5znded down by the state supreme
rourt. It was written by Associate
justice McCarty in the suit Of Z. J..
Nash, respondent, VS.. Lee Clark ct al,
APPELLANTS Associate Justice BaFtch
eoncurs and Chief Justice Bas1in dis
Sents.
Nash brought the action in the dis
srict court TO condemn right Of way
IN a ditch owned by Lee Clark and
others. He owns eighty acres Of lana
IN Utah county, which, without irriga-
lion. is arid. The defendants own a
tract Of land adjoining Nash's land on
the north, which is irrigated with water
from Fort Canyon creek above it. The
Defendants own ditch, connected with
the creek, and running within 100 feet
IF Nash's land
Right Of Way Was Refused.
It is impracticabIe for Nash to get
water from the creek upon his land,
except through the Clark canal. He
asked permission to enlarge and extend
the canal TO his land, agreeing to bear
all expenses and share his portion Of
the expense Of maintaining it. The re-
quest was refused, and he brought con-
domination proceedings IN the district
court, where he won, Clark appealed
10 the supreme court, and lost q sec
Ond time.
In the district court Clark demuTred
TO the complaint, which was OVeTTulet,
contending that the property sought 10
be condemned is strictly private, and IN
no sense for public use. While Asso-
ciate Justice McCarty admits that fact,
he takes the broad view that irrigation
is the sole salvation of The west, anu
that restrictions thrown around &c
would, TO that extent, prevent the arid
lands from becoming productive by the
application of water. IN that event an
irrigation ditch or canal, built by pri-
vate means across OF into private
lands. becomes public property to tie
extent Of the use il can be put to by
another without material damage, %
advance the general welfare of the west
by making barren lands productive.
Arguing along those lines, the justice
continues, in part, as follows:
States Prosperity Demands It.
The natural physical conditions of
this state are such that in the great
majority Of cases the only possible way
the farmer can supply his land with
water is by conveying It by means of
bitches across his neighbor's lands
which intervene between his own and
the source from which he obtains his
supply. The question before Us not only
Involves the right of the farmer to in
woke the law OF eminent domain, when
necessary, TO enable him to convey Wa
ter TO his farm, but that of the miner
manufacturer and persons engaged in
other industrial pursuits, TO build
canals, fumes, and lay pipe lines over
adjoining and Intervening lands, when
necessary for the purpose of conveying
water necessary for the successful pros
eCutiOn of their respective enterprises
The future growth, prosperity, upbuild-
ing and industrial expansion of the
state not only depends upon the storing
and holding back the high and surplus
water 50 they can be used IN times q
scarcity, but also in a careful and Ju-
dicious hUsbandry of the supply now
available, and it Is entirely within the
province of the legislature to enact sUcT
laws respecting the appropriation ana
distribution thereof as viii tend to pre-
vent unnecessary loss and waste, =,
long as vested rights are upheld and
maintained.
Experience has shown that tie
greater the amount of water fiOwins
I'm a ditch of a given size and grade, tht
less the percentage of seepage and
evaporation. Therefore, as a genera
rule. the owners of canals and bitches
instead Of being damaged by their en-
largement and the turning therein Of ar
additional quantity Of water, as is pro
posed in this case, viii at least, IN times
of scarcity during the hot summer
months. and especially during the peri
80 -.--f - 1f.I ylvoffrhc Fr-hfnn ., . ~