Whitmore v. Utah Fuel Co.

McCARTY, J., after stating the facts, delivered the* opinion of the court. Appellant contends that the upper spring was supplied and. fed by water flowing through a defined underground channel or water course, and that the flow was intercepted'and cut off by the digging of the two 1 upper’wells and the pumping of water therefrom by the defendants, and that the thirteenth finding of fact is erroneous. In support of this contention appellant relies mainly upon the fact that this spring went dry soon after defendants commenced pumping water from the wells above mentioned. This, however, is a coincidence that may be accounted for by the fact that about the time this spring commenced failing the water from the upper group of springs which had theretofore flowed down and sunk in the channel above the spring in question was turned into plaintiff’s pipe line, thereby cutting off a part of the supply which, it is presumable at least, in part fed the underground flow which the record shows beyond any question existed in the channel and passed through Sunnyside. The cutting off of this supply and the protracted drouth which had prevailed in that part of the State for more than ten years may have and undoubtedly did to some extent affect the flow of water from this and the other springs in controversy. It is evident, however, that the tapping of the underground channel by the drift before mentioned had more to do with drying up the spring in question than all other agencies combined. • It is shown that the pumping of water from the new upper well had no effect whatever on the water standing in the old town well and the one excavated by "Whit-more, which wells are situated much nearer the spring than the one from which the water was taken. This, together with the fact that for a period of four weeks during the months of August and September, 1901, no water was taken from either of the upper wells, and the spring still remained dry, tends strongly to support the contention of respondents that there was no connection [497] between the waters that supplied the wells and those that fed the spring. The trial judge who heard the case not only had all these facts before him, bnt he made a personal examination of the several wells and the springs referred to, and fully understood the conditions as they existed there, and we are not prepared to say that the findings on this point are not supported by the evidence. In fact, we think that the preponderance of the evidence shows that the pumping of water from the upper wells did not deprive plaintiff of any water which he had theretofore appropriated. We think the evidence conclusively shows that there is an underground or subterranean stream' of water which flows down the channel of Grassy Trail creek to Sunnyside, and which to a considerable extent fed the lower group of springs, the waters of which had for more than twenty years been appropriated and used by appellant on his farm. The testimony of Sharp wherein he says, referring to the water of this channel above Sunnyside, that he “knew the water sinks in some places and comes up again,’'’ when considered in connection with the observations made by the trial judge, as stated by him, in. his oral decision, of the appearance and conditions of the face of the drift which was run underneath the bed of the creek, and the tapping there of a well-defined stream of water, leaves no doubt as to the existence of a subterranean flow. And the fact that the water from the springs in the channel immediately above this drift ceased flowing about the time the channel of the creek was intersected and cut by the drift is, at least, prima facie proof that the drying of the springs was due to the tapping by the defendants of the underground flow as above stated. That known underground streams of water flowing in well-defined channels, such as the one under consideration is shown to be, are subject to- appropriation, [498] 2 and that rights acquired in them hy appropriation cannot he diverted by the wrongful act of another, is so well settled that we deem it' unnecessary to enter upon a discussion of the question. Kinney on Irrigation, 44; Black’s Pomeroy on Water Bights, 67. 3 Therefore it necessarily follows that plaintiff is entitled to recover from respondents whatever damages the evidence shows he has sustained which are the proximate and direct result of the diversion of the waters of the lower group of springs above referred to. It appears from the record that the source of supply of water for Grassy Trail creek has been destroyed, and that it would be impossible for the defendants to return the water to plaintiff; hence he is entitled to recover whatever the evidence shows to he the value thereof. We are of the opinion, and so hold, that the 16th, 17th, and 18th findings of fact are erroneous, and are not supported by the evidence. On the issues raised by plaintiff’s second cause of action, which involve the water taken by defendants from the lower well, the court found “that said well is supplied by waters percolating through the soil under the surface thereof, and moving therein without any definite channels, and in courses which are unknown and unascertainable, the waters supplying said well entering therein at a depth of sixty feet below the surface of the ground, and from the direction of a side canyon, opening into the canyon through which said Grassy Trail creek flows; that the sinking of said well and the taking of water therefrom by said Utah Fuel Com'-, pany does not in any way affect any of the springs that flowed into the channel of said creek, nor the spring known as the ‘Icelander Spring,’ and did not diminish the flow in any of said springs. ’ ’ Appellant challenges the foregoing findings, and insists that they are not supported by the evidence, and contends that the lower well tapped the underground stream that had theretofore fed and supplied the Icelander spring. While the [499] evidence on this branch of the case is somewhat vague and unsatisfactory, yet it tends to show that the water, when the well was dug, came in on the side of the well next to and in the direction of a “side canyon,” and not from the underground flow of Grassy Trail creek, and the only evidence from which it might be inferred that the taking of water from this lower well interferes with the flow of the spring is that at about the time the well was dug the spring, which is two miles distant, with a high, ridge between it and the well, commenced to fail, but did not go entirely dry. This court has repeatedly held that a finding of fact by a trial court will not be set aside unless it is clearly against the preponderance of the evidence. 4 Henderson v. Adams, 15 Utah 30, 48 Pac. 398; McCornick v. Mangum, 20 Utah 17, 57 Pac. 428; Hannaman v. Karrick, 9 Utah 236, 33 Pac. 1039; Dooly Block v. Transit Co., 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; Whitesides v. Green, 13 Utah 341, 44 Pac. 1032, 57 Am. St. Rep. 740; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Blish v. McCornick, 15 Utah 188, 49 Pac. 529; McKay v. Farr, 15 Utah 261, 49 Pac. 649; Dwyer v. Mfg. Co., 14 Utah 339, 47 Pac. 311; Short v. Pierce, 11 Utah 29, 39 Pac. 474. The judgment of the trial court dismissing plaintiff’s second cause of action is affirmed, but is reversed as to the first cause of action, and the cause is remanded, with directions to said court to enter judgment in favor of plaintiff for the damages which he has sustained by the diversion of the waters of the lower group of springs by the defendants; if, however, the court is unable to render judgment on the evidence introduced, to reopen the case for the taking of further testimony on this branch of the case. Costs of this appeal to be taxed against respondents. BASKIN, C. J., and BAETCH, J., concur.