Geddes v. North Ogden Irr. Co. , 33 Utah 456 ( 1908 )

McCAETY, C. J.

(after stating the facts as above).

Practically the same questions are presented on this appeal that were raised and determined in the case of Fuller et al. v. Sharp et al., ante, p. 481, 94 Pac. 813. In fact that suit involved the very questions out of which this controversy arose, namely, the right of the Eden Irrigation District to divert the waters of North Fork of Ogden river during the dry or low-water season, which usually begins in June, and continues on through the irrigation season. The Ogden Irrigation Company, however, was not a party to that suit.

The record shows that the lands irrigated by the North Ogden Irrigation Company are situated in Salt Lake Valley and the company gets its supply of water from Ogden river. The lands of the Eden Irrigation District are situated in Ogden Valley and are supplied with water from the North Fork, a tributary of Ogden river.. The dam of the Eden Irrigation District is situated about eight miles above the dam of the North Ogden Irrigation Company. The junction of North Fork with Ogden river is about four miles below the Eden dam, and the evidence without conflict shows that during the dry or low-water season which, usually begins in June, and continues on through the irrigation season, there is not sufficient water in North Fork at the Eden dam to flow down and through the natural channel of said North Fork to Ogden river in sufficient quantity to be of any material benefit to the North Ogden Irrigation Company and other appropriators lower down the stream. William Bostaph, a civil engineer, testified that he devoted almost his entire time in the year 18 90 to measuring and observing the water of Ogden river and its tributaries, and that during the four years preceding the trial (August, 1905) he had spent most of each summer investigating the flow of the water in Ogden river and in particular the North and Middle Forks. Speaking of the North Fork he said: “I have been there this year (1905) and observed its condition, and measured it-last year and every year since 1902. . ... I have seen the water turned out of the Eden ditch into the natural channel four or five times, and in no instances .. . has the water gone through on the surface, and there was no increase in the natural flow that I could detect after that water was turned down until eighteen or twenty days when I observed a little increase in the stream on the west side (referring to a point on the stream a short distance above the junction of the North Fork with Ogden river).” Another witness testified, and his testimony is not contradicted: “That they (referring to complainant and other appropriators low^er down the stream) had it turned out of the (Eden) ditch in July for two weeks and it wouldn’t get there. ... In 1901 and 1902, it was also turned out. It was out two or three weeks. None of it got through. It was turned out the following year and none of it got through (to Ogden river).” On cross-examination, he said: “There was a little run through in 1903; I could step across it, though eighteen or twenty feet was turned out (of Eden ditch) at dam. In 1902 eighteen feet was turned out, but it didn’t go through.”

The record further shows that during the season of high water the Eden Irrigation District turns into its canal about forty-five second feet of water, wbicb is spread over tbe lands of tbe district. From two to three weeks after irrigation begins in tbe Eden district springs and seepage water commence to rise at tbe lower end of tbe district. Tbis spring and seepage water flows into tbe North and Middle Forks and from there into tbe Ogden river. In tbe fall of tbe year, soon after tbe water is turned from tbe Eden canal back into’ tbe natural channel of North Fork these springs and tbe seepage water cease'flowing until' after tbe water is again turned into tbe Eden canal and spread over tbe lands of the district. At times during tbe low-water period tbe springs and seepage water referred to amounts to about thirty second' feet, all of which flows into Ogden river.

For a more full and complete statement of tbe facts and circumstances out of wbicb this controversy arose reference is hereby made to tbe case of Fuller et al. v. Sharp, et al., supra. In that case, wbicb, as hereinbefore stated, involved tbe rights of tbe Eden Irrigation District to take and divert all tbe water from tbe North Fork during tbe low-water season, tbe decree wbicb tbe defendants in tbis action are charged with having violated was pleaded as res adjudícala, but tbis court held that tbe decree included tbe water in Ogden river and such streams only as would, when not turned from their natural channel, flow into said river. And, as we have observed, tbe evidence in tbis case shows that there is insufficient water in tbe North Fork at tbe Eden dam during tbe dry or low-water season to flow through tbe natural channel to Ogden river in quantity sufficient to be of any practical benefit to tbe appropriators lower down on tbe river. And furthermore, tbe court in Fuller et al. v. Sharp et al., supra, awarded to tbe North Ogden Irrigation Company, and other parties along Ogden river whose appropriations of water from said river were prior in time to that of tbe E'den Irrigation District, tbe amount of water from North Fork wbicb tbe evidence in that case showed they were entitled to. And tbe decree further provides that, when tbe volume of water flowing in tbe North Fork at or near where it empties into Ogden river is below a certain amount specified in the decree, the Eden Irrigation District “shall turn from its canal so much of the water of said North Fork at such point as may be most convenient for said district and economical for the conservation of the water, into said North Fork below said district’s dam, as will make the quantity of water flowing at said point of measurement,” equal to the amount awarded to North Ogden Irrigation Company, and other prior appropriators of the waters of said stream. No complaint is made that the decree in that case has not been strictly observed by the Eden Irrigation District, or the defendants herein. Under that decree the defendants, as representatives of the Eden Irrigation District, were authorized to turn all the water from the North Fprk into the Eden Canal during the low-water season. Therefore, the findings of the trial court that defendants are in contempt because of their acts in the premises were erroneous.

The case is reversed, with directions to the trial court to set aside the judgment and to dismiss the proceeding^. Costs to be taxed against respondents.