Stowell v. Johnson

BlaCKbueN, J.: The appeal in this case is taken for the purpose of modifying the decree made in the first district court, and the claim to have the decree modified is based upon the findings of facts made by the court (the evidence not being in the record) and the common law doctrine of riparian rights. The parts of the decree complained of — 223 — are as follows: “That the plaintiffs are the owners of the right to use all the waters of said Waterfall canyon creek ánd one-half of the waters of said Strong’s canyon creek ■during the winter season, to-wit, between the 15th day -of November and the 15th, day of the following April of each and every winter season, for domestic purposes, and for the purpose of furnishing the inhabitants of Ogden ■City with water, and the enjoining of defendants from interfering with such use.” The findings of facts by the ■court, so far as the questions made are concerned, are substantially as follows: “ That the plaintiffs are the owners of certain lands described in the complaint; that the defendants are the ■owners in fee of distinct parcels of land lying west of the lands of the plaintiffs; that they have been such owners since and prior to the year 1880; that defendants’ lands are cultivated, and all of the lands of both plaintiffs and defendants require irrigation. (3) Waterfall canyon creek and Strong’s canyon creek rise in the mountains east of the lands of plaintiffs, and flow across the lands- of the plaintiffs, making a junction about the west line of plaintiffs’ lands, and after the junction the stream is called and known as ‘Canfield creek,’ and that this Canfield creek flows westerly in its natural channel across the lands of defendants. (4) That these streams are the only sources ■of water available for the irrigation of the lands of plaintiffs and defendants. (5) That the several defendants in this action, and their grantors and predecessors in interest, and while the several pieces and parcels of land described in the complaint as owned in severalty by the plaintiffs, were unoccupied, unimproved, uncultivated, and unclaimed lands of the United States, to-wit, in the year 1848, by means 'of dams placed in and across the •channel of Canfield creek below and west of the two — 224 — streams, and also in and across the channel of Strong’s canyon creek, above and east of the junction of the aforesaid streams, and also by means of ditches and canals tapping the said Strong’s canyon creek at various places, and leading therefrom, conveyed and appropriated to, in, and upon the several - pieces of land so owned by the defendants, their grantors and predecessors in interest, for the irrigation of the said lands of the said defendants, and for domestic, purposes, all of the waters of said Canfield creek, which creek was then, and ever since has been, and now is, composed of the waters of Waterfall canyon creek and Strong’s canyon creek, which use aforesaid was a necessary and beneficial use thereof. (6) That use, diversion, and appropriation by the defendants and their grantors and predecessors in interest, of all of the waters of said Canfield creek was so made fully and completely during each and every part of each and every year, while the said pieces and pai’cels of land now owned by the several plaintiffs herein were unclaimed, unimproved, and unoccupied lands of the United States, and the several defendants, their grantors and predecessors in interest, did so use, during each and every part of each and every year, and until the interruption in said use hereinafter named, all of the waters of Canfield creek, and of the two said tributaries thereof, except,’’ etc. “(10) The irrigating season is from the 1st of April until the 1st of November. (11) That between the 1st of November, 1882, and the 1st of April, 1883, the plaintiffs, by means of pipes laid for the purpose, diverted one-half of Strong’s canyon creek, and all of the waters of Waterfall canyon creek, during the winter season, and up to the commencement of this suit, and have continued to so divert it, for the purpose of furnishing Ogden with water. (12) That the plaintiffs have ever since November, 1882, and up to the beginning of this suit, continued — 225 — to divert one-half of Strong’s canyon creek, and all of the waters of Canfield creek below the junction.” We think the findings of fact support that part of the decree complained of. It is not found that the defendants need on their lands water for irrigation during the winter season, but the finding is that the irrigating season is from April to November. . Nor is it found that the defendants need during the winter season more water than one-half of 'the waters of Strong’s canyon ci’eek and all of the waters of Canfield creek below the junction. On the contrary, they seem to have got along with that amount of water from 1882 until this suit was commenced. Therefore this decree ought to be affirmed, unless the other contention of the defendants is the law of this Territory; that is, that the common-law doctrine of riparian rights is in force, and that when they, their grantors and predecessors in interest, purchased their land from the United States, the land above them was unoccupied, and the water unappropriated, and that they now are legally entitled to have the water flow as it was wont to flow when they, their grantors and predecessors in interest, purchased it, undiminished in quantity, and not deteriorated in quality. Riparian rights have never been recognized in this Territory, or in any State or Territory where irrigation is necessary; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. If that had been recognized and applied in this Territory, it would still be a desert; for a man owning ten acres of land on a stream of water capable of irrigating a thousand acres of land or more, near its mouth, could prevent the settlement of all the land above him. Nor at common law the riparian proprietor is entitled to have the water — 226 — flow in quantity and quality past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of this Territory has always ignored this claim of riparian proprietors, and the practice and usages of the inhabitants have never considered it applicable, and have never regarded it. So with Colorado, early in its history, by a decision' of its highest court, it was set aside. Yunker v. Nichols, 1 Colo. 551. But defendants contended that their right to have water flow in Canfield creek, as it was wont to when their grantors and predecessors in interest acquired title to the land, is a vested right, and is not a rightful subject of legislation. In this arid country, that must remain a desert without the use of water for irrigation, if anything is a rightful subject of legislation it is the ownership of the water, and use and appropriation of the waters of the running streams for irrigation and domestic use. In support of their contention, the defendants cite Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350. That decision was made in an appeal from the Supreme Court of the Territory of Dakota, where the statutes and climatic conditions are very different from those in this Territory. The full force and pith of the opinion is founded in its concluding paragraph: “Thus under the laws of congress and the Territory, and the applicable custom, priority of possession gives priority of right. The question is not as to the extent of Smith’s interest in the homestead, as against the government, but whether, as against Sturr, his lawful occupancy, under the settlement and entry, was not a prior appropriation which Sturr could not displace. We have no doubt it was under one of the statutes of Dakota upon which this decision is made, and it is as follows: ‘See. 255, (Civil Code.) — 227 — The owner of land owns ■ water standing therein, and flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature, over or under the surface, may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same.’” *How unlike this statute is to the whole course of legislation in this Territory in reference to water-rights. Our views -are supported by Pom. Rip. Rights, § 105. We think there is no error in this decree. Therefore the judgment is affirmed. Zane, 0. J., Andeeson, J., and Minee, J., concurred.