Hyde Park Town v. Chambers

PRATT, Justice. Hyde Park Town sought condemnation of a right of way for piping water over the Weeks’ Chambers’ tracts of lands. These lands lie outside the town. The Weeks and the Chambers contested the suit on the ground that the Town already had the right of way, and was merely seeking to cut off their tap rights in the Town’s pipe line and water; that the tap rights were the consideration for the granting of the right of way. The lower court denied the condemnation. Upon the counterclaim of Weeks and Chambers it granted *120 them a perpetual right to 300 gallons of water per day. This was to come from the Town's pipe line. The Town appeals. In its appeal, the Town accepts the lower court’s holding that it already has a right of way. By various assignments of error, it seeks to have that court’s determination of 300 gallons of water per day set aside. The controversy arises out of the following facts, which we shall briefly set out. As the Chambers are in a less favorable position in this case than the Weeks, we shall discuss only the facts concerning the latter. About the year 1887, Weeks homesteaded the lands belonging to him. He constructad a ditch called the Lower Ditch which had its source in the same canyon and springs as the original source of the Town’s pipe line. He lived on the land during the time required for homesteading and until about 1895. Shortly before leaving, he constructed what was called the Upper Ditch. Its source is at a point farther up the canyon. This was a high water right and so far as its use for irrigation purposes was concerned, ceased with the cessation of the spring flow. During most of the season, a little water ran down the Upper Ditch which could be used for stock watering purposes. After construction of the Upper Ditch, Weeks abandoned the Lower Ditch (1894). The Upper Ditch is still in use for irrigation; and there is some testimony in the record that it can be used, as originally, for stock watering purposes. About 1911, the Town constructed its water system and in order to get water from the canyon, acquired, by contract (if in writing, it has been lost), a right of way for its pipe line, over Weeks’ property, giving him the right to tap the line for his own use. He used the water so acquired principally for stock watering and for drinking while at work upon the premises. After obtaining this tap, Weeks discontinued using the Upper Ditch for these latter purposes. But the facts do not justify any conclusion that the giving up the Upper Ditch water was in any sense of the *121 word a part of the consideration to the Town for the tap rights and water. Thus, it cannot be said that there was an exchange of water rights between the Town and Weeks. The pipe line when first constructed was a gravity line. Ah time went on and it became necessary to increase the Town supply, its officials decided to straighten the pipe and use pressure feed. This resulted in the present suit. The difference between the Weeks and the Chambers situation lies in the fact that the latter does not involve any question of having given up anything other than a right of way for the tap rights. It is the Town’s contention that the 1911 contract was void as in violation of Sec. 6, Article XI, of the Constitution of this State, which reads: “No municipal corporation, shall directly or indirectly, lease, sell, alien, or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; but all such water-works, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges: Provided, That nothing herein contained shall be construed to prevent any such municipal corporation from exchanging water-rights, or sources of water supply, for other water-rights or sources of water supply of equal value, and to be devoted in like manner to the public supply of its inhabitants.” The strange part of this appeal is: The Town is willing to abide by the lower court’s holding that it has the right of way, and yet wishes to repudiate the consideration for that way. It did not assign as error the lower court’s ruling upon the right of way. There were no cross-assignments by respondents upon the point either. Respondents are willing to continue with the arrangement as it originally existed. The Town is willing only as to the right of way. But in all fairness, if the Town is to have the right of way, it should pay to respondents the value and damages, if any, contemplated by a condemnation suit — if the 1911 contract is void. *122 We are of the opinion that the contract is void as contended by the Town. We need cite only the case of Genola Town v. Santaquin City et al., 96 Utah 88, 80 P. 2d 930, and Id., 96 Utah 104, 85 P. 2d 790, on rehearing, for the law upon the point. There is no necessity of repeating it here. There was no exchange of water rights here. That being the case, what about the lower court's finding as to the right of way — the error upon which each party is silent although apparently for entirely different reasons? We are of the opinion that as the right of way arises out of a contract which we hold to be void, it must fall, along with other provisions of the contract which are the subject of attack in this case. The invalidity of the contract cannot be cured in part by a method of proceeding upon appeal. If the respondents desire to give the Town a right of way, all well and good, let them do so. Judging from their contest of this case, they have had no such thought in mind. The contract being void, the Town’s right of way and the the respondents’ tap rights are merely permissive. If the Town desires, as it apparently does, to obtain a fee simple title to the right of way, let them do so by condemnation as originally contemplated. The value and damages they should pay for such condemnation should be measured as of the time of service of summons in this case (Sec. 104-61-12, R. S. U. 1933) subject, of course, to proof that that value or those damages, either or both, have been lost as a result of such condemnation. The Town is not legally responsible for the loss of water rights in the Upper Ditch, if respondents or either of them have suffered such a loss. This court cannot make or direct any award of water to the Weeks nor to the Chambers. As to whether or not they may purchase surplus water from the Town to be used out of the taps, is, of course, a matter of contract and a matter for the de *123 termination of the Town officials. If they have surplus water they may sell it within legal bounds (Sec. 15-8-14, R. S. U. 1933 and annotation thereunder). The view we have taken of this case eliminates the necessity of considering other assignments of error, assuming them prejudicial. They will not again occur under the theories advanced herein. The lower court’s findings of fact, conclusions of law, judgment and decree are set aside and the case is remanded for a new trial. Each party to bear his own costs. MOFFAT, C. J. and McDONOUGH, J., concur.