Howcroft v. Union & Jordan Irrigation Co.

BARTCH, J., having stated tbe facts as above, delivered tbe opinion of tbe court. Tbe appellant insists that tbe third finding of fact is erroneous, that tbe evidence is insufficient to justify it, and that, it is not supported by tbe proof. Tbe finding reads: “That said stream is fluctuating in character in tbe amount of water that it carries and furnishes in tbe different seasons of tbe year, and in different years; and that tbe said water reaches its lowest stage in January, and gradually increases in quantity until about July 1st to about tbe 22d, and after tbe latter date it gradually decreases. That in or prior to tbe year 1856 all the waters of said stream to tbe extent of 185.31 cubic feet per second were appropriated by tbe defendants and others, not including tbe plaintiff, and that ever since said time tbe said defendants and others, not including tbe plaintiff, have necessarily used tbe whole of tbe said waters of said stream, to tbe extent of tbe said 185.31 cubic feet of water per second, measured at tbe headgates of tbe respective ditches hereinafter named, for tbe purposes of’ irrigating agricultural lands in said Salt Lake county, through and by means of tbe following ditches, in tbe following proportions, to-wit: Tbe Tanner ditch, two-nintbs; tbe Walker ditch, one-ninth; tbe Richards ditch, one-ninth; tbe Gabon and Maxfield ditch, two and one-half ninths; tbe TJnion & Jordan ditch, two and one-half ninths. That during tbe whole of said time tbe said defendants, together with some others, owners and users of tbe said ditches, have exercised a common control over the said waters.” Here it is found that in and prior to tbe year 1856 all tbe water of tbe stream, to the extent of 185.31 cubic feet per second, measured at defendants’ headgates, was appropriated, and ever since used, for tbe purposes of irrigation by tbe defendants and others, not including the plaintiff, and that the water bad been diverted by means of certain ditches and in tbe proportions specified. Without referring to tbe testimony in detail, it is clear, from an examination of it, that [316] there is an abundance of proof to support and justify this finding. This is so palpable as to leave no room for argument. The same thing may be said with equal force as to the second and third assignments of error, which relate to findings of fact Nos. 4 and 7. It is useless to call upon this court to disturb findings of fact where they are as strongly supported by the facts and circumstances disclosed by the proof as they are in this case. Nor, for like reasons, is the objection to the conclusions of law herein well taken. Nor did the court err, under the facts and circumstances shown in evidence, in entering a decree and judgment absolute for the defendants. Before the appellant conceived, or, at all events, before he attempted to carry out, his scheme to save water, the water to the extent of 185.31 cubic feet per second — which is more than the quantity flowing in the stream during low water — had' been appropriated and used; and each year, in low-water seasons, the several channels at the Horseshoe bend were, by the users, turned into one channel, the largest one, whether that was the east or the west channel, so as to augment the flow of the stream at the head-gates of their ditches, and whatever increase in the flow was thereby caused was used by them during all these years. They were as much entitled, under their appropriations, to such increase, if any, of the water, as to any portion of the stream. It is a matter of common knowledge that in this arid region the mountain streams generally have what is known as an “underflow,” that is, the water sinks and flows slowly through the rocks, gravel, and sand which form the bed of the stream. This subsurface flow in a known and well-defined channel constitutes a part of the stream, and is subject to the rights of appropriation the same as the surface flow. Kin. Irr., sec. 44. It is true the evidence in this case discloses the fact that at the Horseshoe bend the bed of the stream is pervious, permits the water to sink and cause a subterranean flow, but it is not shown that the same condition of the bed of the stream continues down to and beyond the defendants’ head317 gates, and consequently that the subsurface flow does not again become a part of the surface flow before it reaches the headgates. To show this, the burden was upon the plaintiff. He, however, not only failed to prove that such a physical condition existed in the bed of the stream -as prevented the subsurface water from again mingling with the surface stream above the headgates, but, on the contrary, the evidence strongly tends to show that the underflow again rises, and forms a part of the surface stream, through springs which, according to the proof, exist along the bed of the stream below the point of the lower weir and above the headgates. Under the physical conditions existing in this case, as disclosed by the evidence, the appellant acquired no possible interest in the water of the stream by reason of his notice of appropriation, or of his measurements, the difference in which was explained by the proof, relating to the turning into the stream of water, from two upper ditches after the first and before the second measurement was taken, and the fact that there was not as much seepage -after the two channels were turned into one. Nor had he acquired any right to obstruct the natural flow of the stream by the erection of dams and weirs therein. In Platte Val. Irrigation Co. v. Buckers’ Irrigation, Milling & Improvement Co., 25 Colo. 77, 53 Pac. 334 — a case in some respects similar to the one at bar — it was said: “There was no evidence tending to prove that its waters, after disappearance in the sands of the river bed, did or did not, by percolation or subterranean channels, find their way to the main stream. Those acquainted with the arid region know that some of the most important and well-defined streams become almost, and sometimes entirely, dry, during a portion of the year, and that there is at all times what is known as the ‘underflow.’ This is the subterranean volume of water which slowly finds its way through the sand and gravel constituting the beds of the streams which traverse the country adjacent to- the mountains of this section, and to which rights by appropriation may attach. With these [318] physical conditions present, it will be presumed that water flowing in a natural channel, which reaches the banks of a stream, and there disappears in the sands of the bed, augments the flow in the main stream by percolation, until the contrary is shown; and, the burden of proof is on the party diverting such water to establish that it does not mingle with the main waters of the stream.” The appellant has shown no right to interfere with the stream in question. The rights of prior appropriators to the use of water for agricultural purposes can not be permitted to be impaired by subsequent ap" propriators of the same water for the same purposes. Such rights must be jealously guarded under the law. We are clearly of the opinion that the findings of fact, conclusions of law, and the decree herein are warranted by the evidence. A separate discussion of the other points, raised by counsel for the appellant in their brief, is not deemed important. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, C. J., and NO LAPP, District'Judge, concur.