Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1908-03-05

the prior appropriations, and that the
juniors were restrained from divert
Ing any of the waters except ct such
times as there might be n surplus. The
plaintiffs maintained tight dam high
en- up the stream than the defendants
and converted all the waters of the
North fork; tho defendants removed
the dam and turned the water into the
main channel, hence this action. Tho
plaintiffs did not sue along lines OF
former decree, but claimed TO be own
ers Of 80 second feet, and that defend
ants had interfered with their rights.
The defendants pleaded prior appro-
piiation and the action OF 1899 as res
adJudicata.
''rhe findings and decree of the Ged-
dos action were pleaded in full The
trial court held all the facts with re-
spect to the plea In bar to be true, but
Notwithstanding such findings, the
court treated the matter as at largo
and made fresh findings, defining the
dates of the respective appropriations
of the parties. the quantity of water
appropriated by each, etc, as though
no action with respect to such matters
had ever been had and no such rights
had ever been lltigated or ad-
judged 1t will be seen, that
Notwithstanding the findings Of
facts that the defendants appropriated
all OI lne waters inc NOTln IOIk
and that they were the first and prior
appropriations, nevertheless the plain
tins are given all the waters of the
stream above the dam, while the de-
PENDANTS are only given the waters of
the stream Arising and flowing be-
low the dam. to an amount exceeding
the flow at and above the dam, 20.S6
feet" That is to say, If any water
arises and flows in the stream below
the dam after the plaintiffs have taken
1t all out of the dam, the defendants
are entitled to 1t. While the defend
ants are found to have been the first
appropriations, they are enJoined from
in any way interfering with plaintiffs
dam. AS to whether the people below
the dam get the benefit of seepage
water. Judge Straup thinks was in
volved in the first litigation, and does
not enter into this case. The lower
court did not cOnfine itself, says Judge
Straup, to the former decree (tl1e Ged-
des decislon), but inquired into and
determined everything from the be-
ginning of the world to the time OF the
trial"
The well known maxim, a thing adj
judged makes white black; black white.
the crooked straight; the straight crook
ed, was disleggrded, and the court
made that white which from all the
evidence appeared to be white. and
that which seemed to be crooked was
made straight" is an ironical comment
of Judge Straup. He does not see how
i; is possible to harmonize the decree
with the findings of the court.
SECOND CASE REVERSED.
In the second case disposed of by
the supreme court today. the lower
court is reversed. Judges McCarty and
Frick finding for appellants while Judge
Straup again dissents The case grew
out of the above action, George A. Full
Ter Virgil b. Stallinsg and Daniel Lind
say having been accused OF contempt
of court in the matter OF the Geddes de-
cree. Judgment was against the de-
PENDANTS. and the supreme court today
said that the lower court erred, and the
latter was directed to set aside the
judgment and dismiss the action. The
arguments of the three supreme court
judges were in effect the same as in
the one first noted.