The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1905-03-28
THE WATER PROBLEM.

IN \ COMMUNICATION discussing
one phase Of the water problem,
Attorney Christopher Reed offers a
suggestion that the water right
claimed by the Utah Light & Rail-
way company at the mouth of Big
Cottonwood canyon, is subject TO con-
demuatiou by the city without any
further enabling legislation. Citing
the statute governing the right of
eminent domain. and specifying the
uses for which it may be exercised
Mr.. Reed calls special attention to sec
tion 35S9, which reads: Cd The fol-
lowing is a classification Of the es-
tates and rights i'm lands subject TO
be- taken for public use: A fee sim
pie. when taken for public buildings
and grounds. or for permanent build
ings, for reservoirs and dams. and per
manent flooding occasioned thereby
or FOR an outlet for Il flow. or a place
for the deposit of debris or tailings Of
a mine. mill smelter or any other place
for the reduction OF ore. (2) An ease
ment when taken for any other use
After cNamination OF the law. Mr.;
an" company under all the authorities ana
text writers are a mere easement and
section 35Ss expressly provides that an
easement may he taken by virtue of the
law of eminent domain. when taken for a
public use Water rights at common law
were adiudged to be easements. and the
supreme court of Utah in the case of
Beaver Irrigati company against the
city Of Ogden. reported in Eighth L tan
FOR the Court there saws that '', Water now
ing in "a natural stream is not subject
10 ownership so far as the corpus or
tho water is concerned. and that the
right TO use il IS a heraditameut appUr-
tenant To the land This is a Clean-cut
statement by our court of last resort
which leads tn tho iueyitab BILE conclusion
that water rights, under the law of thus
state, are mere easement, and for the
taking of which, at "A fair appraiSemcnL
the law has made ample provisions IN
the sections heretofore quoted.
The TACT tina; riparian ownership does
not prevail in this state. in no
way modifics the conclusion which
I have reached. for the reason
are subject to what the law calls
secondary rights that is to say. no one
can subject his water rights to an absolute
ownership. but that the same may be
participated in b. others in the man
ner pointed out by the statutes of this
THE law of riparian ownership does
not apply in this state so tar as II
tends to prevent the diversion of water
FOR domestic or irrigation purposes, nut
otherwise the principle of riparian own
ership governs in this state, hence wa.
ter rights are in the very nature or
things, with the single exception just
stated. as clearly easements in this state
as at common law
Mr.. Reed also calls attention to the
fact that the proposed new franchise
entirely omits that important and ne
cessary feature included in all former
franchises, whereby the city is given
the right upon a proper notice to the
company. to repeal or revoke the COM
pany's franchise. for a sufficient cause,
and he suggests that the city would be
left at the mercy of the company, 50
that the inquiry might properly be
made Why was this omitted?
The committee OF one hundred has
planned to make an exact and careful
comparison of the old franchises with
the one now proposed. which is expect
ed to reveal some startling omissions
and commissions in the interest of the
company and in opposition to the in
terests Of the city. II no other work
we're accomplished this alone would
Justify the public-spirited work of the
men who called the mass meeting Of
Sunday. and of those who have vol
unfairly assumed 10 take up the bat
tie for the people as against the com
Uany.
This fight includes more than the
mere defeat OF a proposed franchise
grab; it is to determine whether the
power company can prevent the sue
cess of the programme for a larger
and better water supply for Salt Lake
water right it claims in the paper mill.
and il the city cannot condemn that
right under the existing laws Of emin-
eut domain, then it viii be possible for
the company to prevent the acquisition
Of the Big Cottonwood water under
conditions which would make the
scheme desirable: or it Will be in posi-
tion to demand a price for it's rights
either I'm cash or franchise extension,
which the city cannot afford to pay.
In either event, it seems probable
that the first questions to be deter
mined are whether the power company
does hold rightful title to the water:
whether its possession of all the land
at the mouth Of Big Cottonwood gives
it power to prevent the construction of
the city's conduit at the necessary eIe-
walton; and whether there is any rem
edy in law I'm case both these points are
determined in favor of the company
In any event. the organization OF the
people is valuable, in that it gives the
public a means of enforcing it's will
as against those public servants who
may be tempted TO betray their con-
stituents by voting away valuable
privileges for song.