The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1905-06-15

Code. Sec. s7sD We do not think the word
owner occurring IN the charter was
based IN the sense that the city must be
tne noiuer OF the title. but rather in the
sense that II should have the control
of water supply The term owner in
eludes any person having a claim or in
an absolute fee LoZO Y. Sutherland y
Mich i7l-1 Anderson-s dictionary cites
numerous cases in Illustration of the pr1n-
ciple that the term may designate the
of premises
higgins v San Diego. 50 Pac 47s.
1t thus appears that If the options in
question are exercised. the city will be
come the owner Of the water rights puT-
chased. and that the vendors viii have
no title or ownership remaining in them
The right OF the city under the contracts
Is o perpetual Tel Co V Ry. Co, l.. Fed
As to Exchange of Rights.
After referring to section s. article III.
corporations from directly or indirectly
tossing selling or dispOSing of any of its
waterwOrkS or water rights or sources OF
water supply. with the prOviSo- however
that they may exchange water rights
or sources of water supply for other Wa
ter rights or sources Of water supply OF
equal value 1t Is stated i'm the relator <
1 brief that what the city proposes to do
in the present case is within the prohibit
ton OF the constitution against leasing
its water rights and sources Of water
supply and is not such an exchange of wa
ter rights or sources of water supply as
is contained in the prOviso.
The only reason assigned for this con-
tenuOn IS that no absolute title to the
water acquired by exchange viii be held
by the city.
We are unable to see how the proposed
exchanges. can be construed to be in vlo-
/ latlon OF the provisions of the constitu-
ton prohibiting a municipality from leas-
ing selling or dispOsinE of its waterworks
OF water flSnJS or sources OF water sup
ply This point seems so far-fetched and
Intangible that we do not know how to
discuss it
As showing the extreme remOteness of
| tn" contingency upon which forfeiture
Of the cityS rights could occur we will
remind the court that 1t appears from the
address to the voters which is made a
part of the REALTORS affidavit. that the
city then had over 43.000.00 gallons daily
available supply. Of Utah lake water. and
that 8-6SioaG gallons was all that would
be required in exchange for all of the
waters of ParIev's creek. Mill creek. Big
| Cottonwood creek and Little Cottonwood
creek, including twenty-five per cent bO-
nus. 1t appears from the defendants
answer that the city has since acquired
an additional daily supply of 12.000,000
gallons from Utah lake. which leaves it
with over 100000 gallons daily supply
IN excess Of what would be required for
all OF these exchanges, besides its re-
serve Of stored water in Utah lake II is
Q
even default or interruption in the use
/ or the water acquired by the exchange,
would be not only extremely improbable,
but practically impossible.
Take Up Power Company Convention.
As we understand the REALTORS second
contention. 1t is that in order to carry
out the plan for increasing the water SUD-
ply II VIII be necessary for the city to
acquire certain water rights claimed by
/ the Utah Light & Railway company.
Whlch II refuses to convey to the CITY eX-
cept upon terms not acceptable to the
city and that the same cannot be ac-
CURED by the city through the exercise
OF the power of eminent domain. because
! the rights OF the company are superior,
city.
1t IS alleged by the defendants i'm their
answer and admitted by the reiator that
1 me water rights claimed by the Utah
Light x Railway company consist of wa
ter rights for power purposes only that
one Of said rights was used prior to the
ISL day OF April 1883. for the purpose Of
/ furnishing power for Operati ting a paper
mill: that the said mill was destroyed
on that day and has never been rebuilt
and the power right has never since been
used Tor any purpose whatever; that sew
erai years ago a small Sawmill was Ope-
rated by power furnished from the waters
OF Big Cottonwood creek ana the said
Utah Light & Railway company has
since acquired the ownership of said
water right and mill and has continued
a very limited way. that both of these al
legged water rights claimed By the Utah
Light q Railway company are situated
below the power plants which have here
tCiorc been and are now being operated
by said company, that the only interfer-
enco with these alleged rights which
could possibly occur in carrying out the
proposed plan for Increasing the city'S
water supply would be in changing the
point Of diversion Of the waters secured
under the contracts for exchange and
would not in any way interfere with the
operation Of any Of the existing power
plants of said company, that the waters
of Big Cottonwood creek. which the city
proposes TO acquire by exchange. are now
diverted from the natural channel of said
stream at point below the site of the
old paper mill and il is desired by the
city to divert the waters Of said creek
from the natural channel al a point above
said saw mill and paper mill site and be
low the lower power plant of said COM
pany.
Interference Is Denied.
It is also alleged in said answer and
admitted that the plan which was sub
mitted to the voters. as appears from the
realtors exhibit a. was for Increasing
the water supply Of the city by laying
pipes and establishing a water system Ia
creek and Mill creek and their tributaries
to Salt Lake City. and acquiring water
ana water rights in said streams and in
ian lake and by improving and extend
ing the present system Of water distribu-
ton by which water is now distributed
throughout said city" that the carrying
out of this plan Is not dependent upon di-
verting the waters of Big COttCnwoOd
creek at any point which would interfere
with any Of the water rights claimed BY
the Utah Light & Railway company be-
cause said waters can be diverted from
their natural channel below the old paper
mill site. which is the lowest right
claimed BY the company and said waters
can be conducted by gravity into Salt
Lake City at a point above the Thr-
tecnth East street reservoir. so that they
can be utilized from said reservoir and
distributed through tho present water
works system of the city.
Right of . Eminent Domain Claimed.
The rights of eminent domain is grant
ed to the city by chapter 90 of the revised
statutes of Utah Of 1898. rs amended by
chapter > of the laws Of Utah of 1901
Subdivision = Of section 1855 Of said chap
ter, as amended. reads IS follows.
;. Public buildings and grounds for
the use Of any county. Incorporated CITY
@r town. or school district: reservoirs ca
ma IS aqUedUctS. fumes bitches or pipes
for conducting water for the use of the
lnhd bitantS Of any county. or inCOrpOrat-
ed city OF town. OF for draining any