Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1905-06-15

sS Am and Eng, Of Law, y, 1884 and
eases cited,
Where property II conveyed from one
party 10 another subject to mort
gage or trust deed, the grantee un'
doublcdly becomes the owner of The
property although ho may afterwards
lose hls title by making default IN the
payment Of tho onoumbrunco upon the
property
The city charter OF san Diego author.
l2od the appointment OF water com'
missioner only when the city shall "bo
The owner Of any water supply or shall
decide 10 construct "a system Of water
supply"
Statutes 1850, sec I, page 6Oi,
~ the case OF Higgins w. cry Of
san Diego, l3l Cali 3OG.i whore the
water WAS leased by the city n was
clslmod that the payment Of the SAL
anos Of tho water commissioner and 9th.
or expenses OF the ONCE, were Illegal
ana void, Tho court on page 3o',
tayu
nut II IN objected that this could on
~ be done upon the city becoming tho
owner " any water supply or shall
decide 20 construct system Of wator
supply, etc, ana II IL oontondcd that
innsmuoh aB the city never became the
owner ~ any water supply, the water
fund ana the water department. had no
legal existence, The ownership OF "A
thing " The right Of one or more per.
sons 10 posscee and use II % mo oS-
$50 The ownership Of property IN
CIV. Code, soo, G,s) we do not think
lla unVA t,up.atl nuaNpVlbU LA tha phar.
ter was based IN the sense that tho
city must be tho holder " the tito,
but rather IN the sense that II should
have the control of n water supply,
Tho term owner includes any person
having claim or interest IN real prop
prly, though less than an absolute Zoe,
0,oSo " Sutherland, rs Mich l7l) An.
dcreon's dictionary elites numerous
eases IN illustration " the principle
that the term may designate the person
In actual possession and occupancy "
premises
Higgins v. San Diego, On Fac, ii6
II thus appears that n the options
In question are exercised, the city VIII
become the owner Of the water rights
purchased, and that the vendors viii
have no title or ownership remaining
IN them Tho right " the city under
the contracts II perpetual Tel, Co, "
Ry, CO., l2o Fed, So
TITLE by EXCHANGE
After referring 10 section g. article
81 NJ tho Constitution, prohibiting
municipal corporations from directly or
indirectly leasing selling or disposlng
of any Of its walorworM or water
rights OF sources ~ water supply, Win
the proyleo, however that they may
exchange water rights or sources NJ
water supply for other water rights or
sources oi water supply OF equal value.
II N stated IN the REALTORS brief lhd-
what the city propoes 10 do M mo
present ease II WITHIN the prohibition
of the Constitution against leasing lis
water rights and sources Of water sup.
ply and N not such an exchange OF wa
ter rlghts or sources Of water supply
M IN contained IN the rroNiso,
The only reason assigned for ms
contention IN that no absolute litle Ia
the water acquired by exchange VIII
be held by the city
We are unable 10 soc how the pro.
poscd exchanges can be construed Co be
I'm violation OF the provisions OF the
Constitution prohibiting q municipality
from leasing. selling or dsposing Of IT,
wat,rworks or water rights or sources
of wator supply This point seems 30
far,fotched and Intangible that we do
not know how 70 discuss H.
Az showing the extreme remotcness
Of the contingency unon which u for
fptufo of tho cltys rights could occur
we win remind the court that " ups
ncars from the address 60 the voters,
which Nv made a part Of the rclNlors
nfidavit, that the city then hnd over
AZ, 600 ono gallons, doily available Supply,
OF utah lake water ana that Aib3l OQl
gallons was all that would bo required
In exchange for all ~ the waters OF
pareya crock NIL creek, Rig Cotton.
wood creek ana Little cottonwood
creek including 90 per cent bonus, "
appears from Tho dcfondautH answcr
that the city has since acquired an ad'
dtlonnl dalV supply Of laOONOQO gal
Ions from utah lake, which leaves II
with over II 900 mo gnllons dallN tup'
ply I'm excess Of what would bo required
Tor All NJ those exchanges, besides ilb
rcsfryp Of stored water IN Otah lake,
II ls therefore clear that any forfeiture
or oven dcfaul, or interruption IN the
lse Of tho water acquired by the eN'
change, would be nor only oNNemely
Improbable but practically impossible
IA NO understand the rolators rer'
oud contention, II IN thHt IN order 10
.rnrrv out the plan for increasing the
water supply II viii be necessary Tor
tho city 20 acquire certain water rlghh
claimed by the Utah Light 4 hallway
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