Bastian v. Nebeker

McCARTY, J. (after stating tbe facts as above). TJje first question presented by the appeal is, Did the court err in its findings of fact wherein it held that 84-J per cent, of the water flowing from the wells is developed water that did not, before the wells were constructed, come to the surface of the earth through the orifices and subterranean channels from which issues and flows the spring and seepage water of King's Meadows? The court, in effect, found, and there is an abundance of evidence to support the finding, that the waters from the wells and the normal flow of the springs and seeps came from the same source and are supplied by the same underground reservoir or body of water. In fact no other conclusion is permissible from the evidence, considered, as it must be, in its entirety. Counsel for respondent concede this. In their printed brief they say: ‘ ‘ There is no question made by us, # * * but what the operation of the wells did interfere with the water of some of the springs to the extent of taking therefrom a small percentage of the water.” The court, before the trial was concluded, suspended proceedings and made an order that: ‘ ‘ The water in dispute be measured on the 21st day of June, 1912, and that immediately after such measurements that the wells be plugged so as to prevent any waters flowing therefrom; that five days later, to wit, June 26th, the waters flowing in said basin be measured; that on July 1, 1912, the waters flowing from said basin be again measured, and immediately after such measurement that the wells be turned loose so that the water may flow therefrom; that on July 11, 1912, the waters from the wells and springs be measured separately; that on July 21, 1912, the said waters flowing from said wells and springs be measured separately, and that the wells be then plugged so as to prevent any water from flowing therefrom; that said measurements be continued each [398] and every month thereafter in the same manner * * * until final trial of this cause.’ ’ The court appointed J. Oscar Anderson, a civil engineer, “as the agent of the court to make such measurements.” Anderson, in pursuance of the order, made measurements as therein directed to and including July 1, 1912, and thereafter made measurements every ten days, instead of every five days, to and including January 21, 1913. The flow of the water from the spring, as shown by the several measure^ merits, also the flow from the wells when unplugged, was as follows: Well Spring Water. Water. June 21 (wells unplugged).453 .263 June 26 (wells plugged). .336 July 1 (wells plugged). .336 July 11 .440 .263 July 21 (wells plugged).. .338 August 1 .438 .263 August 11 (wells plugged). .335 August 21 .438 .249 Sept. 1 (wells plugged).•. .365 Sept. 11 .439 .293 Sept. 21 (wells plugged). .352 Oct. 1 .540 .30 Oct. 11 (wells plugged). .364 Oct. 21 .■.452 .293 Nov. 1 (wells plugged). .388 Nov. 11 .439 .291 Nov. 21 (wells plugged). • .365 Jan. 1 (wells plugged). .394 Jan. 21 .'... .452 .313 The decimals indicate fractions of a second foot. The result of the measurements made by Anderson in pursuance of the court’s order shows that when the wells are permitted to flow continuously for a period of ten days only, there is a substantial reduction in the flow of water from the springs. To what extent a continuous and uninterrupted flow from the wells would affect the springs in the course of a few months or a year is a matter of conjecture only. [399] 1 It is settled law in this jurisdiction that where a party goes upon a stream at or near its source, the waters of which have been appropriated, and are being nsed by others for beneficial purposes, and intercepts or taps a subterranean flow or body of water and diverts any substantial flow therefrom which he claims to be developed water, the burden is upon him to show by satisfactory proof that the water so intercepted and diverted is “developed water.” Mountain Lake Min. Co. v. Midway Irr. Co., 47 Utah 346, 149 Pac. 929. And where, as in the case at bar, it is shown by indisputable evidence that the water claimed to be developed water is drawn from the same underground flow or body of water that wholly or partially feeds and supplies the springs from which the prior appropriator obtains his water, the subsequent appropriator, the party claiming to have developed water, should be required to show by clear, positive, and convincing evidence, that the water claimed by him is developed water. Mountain Lake Min. Co. v. Midway Irr. Co., supra, and cases there cited. 2 The evidence in this case, as the record now stands, regarding the effect that a continuous and uninterrupted flow of the wells would eventually have upon the flow of water from the springs is, as stated, a matter for conjecture and theory only. The plaintiff, therefore, did not support his claim that 84 7/8 per cent, of the water flowing .from the wells is, as found by the court, developed water, by that quantum of evidence required in eases of this kind. The proof on this pont, as the record now stands, furnishes as sound a basis for concluding that a continuous, unimpeded flow of water from the wells, for a considerable period of time, would materially reduce the flow of the springs below, the lowest point shown by the measurements made by Anderson, if it did not entirely dry up the springs, as it does for concluding that it would not reduce the flow of the spring water below what it was when the measurements were made. The court therefore erred in making the finding of fact last referred to. [399] The trial court, by appointing some person, familiar with the rules for measuring water, to measure the water [400] flowing from the spring and seeps at intervals for a reasonable length of time while the wells are plugged and then make measurements at intervals for a considerable length of time when the wells are flowing at their full capacity, ought to be able to determine approximately the amount of developed water, if any, that flows from the wells. Should the trial court on retrying the ease make an order that further •measurements and tests be made to determine the amount of developed water, if any, produced by the wells, the entire expense of such measurements and tests shoulá be borne by the plaintiff, because, as stated, the burden is on him to show by clear and convincing evidence that the water claimed by him is developed water. 4 The evidence shows that plaintiff’s trench or drain ditch situated just west of and in close proximity to the natural water channel where the same passes through King’s Meadow intercepts and carries to plaintiff’s reservoir a substantial flow of seepage water. This seepage water is tributary to the main stream used by the Nebekers, and the court erred in not awarding and decreeing it to them. 5 The evidence further shows, in fact it is conceded, that no part of the seepage water intercepted by the drain ditch, nor any portion of the water flowing from the wells to the reservoir, is used or is intended for use on lands within the King’s Meadows basin. Nor is it used or intended for use upon any land in or bordering on King’s Meadows canyon, but-, as alleged by plaintiff in his complaint, it is his intention to convey the water from the reservoir to and on lands in and around Sigurd in Sevier Valley, several miles north of defendant’s lands. Therefore the presumption may be indulged that no substantial amount of the water conveyed from the wells to the reservoir will find its way into the natural water channel at any point or points above the Nebeker ranch; hence no part of this water can be reclaimed by the Nebekers after its use by the plaintiff. 6 The evidence practically without conflict shows that the bed of the reservoir located a short distance north of King’s,Meadows is adjacent to a salt bed, and that when wated is impounded in the reservoir it partially [401] submerges tbe salt bed. While there is an apparent conflict in the evidence as to whether the water in the reservoir becomes befouled and unfit for culinary and domestic purposes, the greater weight of the evidence, nevertheless, tends to show that this water, because of the salt and mineral substances with which it comes in contact, is rendered unfit for culinary and domestic purposes, and that sufficient of the seepage and percolating water from the reservoir flows directly into the natural water channel and thence into the stream used by the Nebekers to render it unfit for culinary and domestic purposes. The evidence without conflict shows that the Nebekers, because of the unpotable state of the water flowing to their ranch, have been compelled to haul water for culinary and domestic purposes from a point above the reservoir dam. The court therefore erred in its findings of fact, wherein it is held that: “The storing of water in said reservoir did not render any water owned by the defendants impure and unwholesome or unfit for culinary use. ’ ’ The findings of fact and conclusions of law were made and judgment rendered September 4, 1914. On January 2, 1915, defendants duly served and filed notice of motion to move for a new trial. One of the grounds stated in the motion is, “Newly discovered evidence material for defendants * * * which they could not with reasonable diligence have discovered and produced at the trial. ’ ’ In support of the motion defendants filed affidavits in which, among other things, it was recited: “That since the taking of testimony in this case upon the former trial at Richfield, said county and state, the reservoir belonging to said plaintiff which, during the said trial and for many months prior thereto was covered with water, broke and the water was drained from said reservoir exposing the bed thereof to view, and disclosed the fact that there were springs and seeps in the said reservoir bed, as contended by said defendants at the said trial. ’ ’ No counter affidavit was filed by respondent. [401] Should it develop upon the taking of further evidence that there are springs and seeps of water arising in the bed [402] of the reservoir that find their way into the natural water channel, this water, if flowing in any substantial amount, should be awarded and decreed to the Nebekers as tributary to the main stream appropriated and used by them. The cause is remanded, with directions to the trial court to reopen the case and take further evidence along the lines herein suggested, and to make findings of fact and conclusions of law defining the rights of the respective parties to the waters flowing from the wells, and enter a decree in harmony with and responsive to such findings of fact and conclusions of law, and to incorporate into the decree provisions in accordance with the views herein expressed respecting the seepage water intercepted and collected by plaintiff’s drain ditch, and the spring and seepage water, if any is shown to exist, arising in the bed of the reservoir. The trial court is further directed that unless plaintiff devises and adopts some means of preventing the befouled reservoir water from seeping, percolating, and finding its way into the stream used by the Nebekers, or furnishes them at their ranch sufficient potable water without expense to them for culinary and domestic purposes, to incorporate into the decree a provision perpetually restraining plaintiff from rebuilding and maintaining the reservoir. Appellants to recover their, taxable costs on this appeal. STRAUP, C. J., concurs.