Sigurd City v. State

142 P.2d 154, 105 Utah 278, 1943 Utah LEXIS 19

• Court: Utah Supreme Court
• Decided: October 19, 1943
• Docket: No. 6303.
• Status: Published

Opinions

WADE, Justice.

The town of Sigurd determined to obtain a supply of water for culinary and domestic uses. About 7% miles southeast of Sigurd at the head of a canyon known as Rosses Creek Canyon there arise springs. It is the water from these springs which Sigurd decided would be the most suitable and practicable for its purposes. The waters from these springs flowed into Rosses Creek, and Rosses Creek is a natural tributary of a stream of water which runs through Kings Meadow Canyon, and is known by the name of either Kings Meadow Creek or Petersons Creek. In this canyon are located two ranches, one is known as the Nebe-ker Ranch and the other is known by the names of Bastion, Peterson, or State Ranch. Hereafter we shall call the latter ranch the Peterson Ranch, and the Kings Meadow Creek the Peterson Creek. On the Peterson Ranch are located numerous springs and flowing wells whose waters flow into Peterson Creek and thence to the Nebeker Ranch which is lower than the Peterson Ranch. During summer these two ranches used all the waters in Peterson Creek for irrigation purposes.

On June 6th, 1988, Sigurd City filed with the State Engineer of Utah an application to appropriate for domestic and culinary purposes .5 C.F.S. of water from the Rosses Creek Springs. Thereafter it constructed a pipeline and a system for the distribution of the waters to its inhabitants running from these springs to Sigurd City.

The State Land Board of Utah and George W. Nebeker claimed ownership of the waters sought to be appropriated by Sigurd and protested to the State Engineer the granting of this application. The State Engineer found these waters were unappropriated from October 16 to June 15 of the succeeding year, which period of time covers the nonirri-gation season, but were appropriated waters in the remaining months, and thereupon approved Sigurd’s application, subject, however, to prior rights for the period commencing October 16 to June 15 of the succeeding year.

On June 15, 1939, Sigurd City commenced proceedings in the District Court against the State of Utah, George W. Nebeker and Emily Nebeker, his wife, to condemn whatever rights they had in the waters which were being diverted by Sigurd City at the head of Rosses Creek.

Sigurd City did not concede that the defendants owned any interest in the waters which it had taken. There was therefore injected in the case the question of title as well as the questions of value of the waters sought to be condemned and the damages sustained by the defendants. It was stipulated that the court should try the question of title and a jury the questions of value and damages, if any, should the court find title to be in the defendants. It was also stipulated that the jury should listen to all the evidence in the case but should, upon instruction from the court, decide only the questions of value and damages.

The evidence disclosed that George W. Nebeker was the assignee of a contract of sale from the State Land Board of the land and the appurtenant water rights of the Peterson Ranch.

Nebeker claimed all the waters in the Kings Meadow Canyon by virtue of continuous beneficial user for irrigation, domestic and culinary purposes, by himself and his predecessors in interest for a period extending over 50 ' years.

The State of Utah claimed the right to the use of waters in Kings Meadow Canyon by virtue of the decree in the Richland Irrigations Co. v. West View Irrigation Co., case No. 834, in the Fifth Judicial District of Utah, wherein certain amounts of water in Peterson Creek were decreed to the owner of the Peterson Ranch.

Sigurd conceded the claims of the defendants to the waters in Kings Meadow Canyon, but contended that the waters which it diverted were not part of the waters which flowed into Kings Meadow Canyon. Its contention was that the waters which it diverted on Rosses Springs never reached the ranches of the defendants and therefore did not belong to them. In its complaint Sigurd City admitted that the natural channel of the Rosses Creek united with the natural channel of Petersons Creek, but contended that during the major portion of time there is not sufficient water in Rosses Creek to reach the bed of Petersons Creek.

There was evidence to the effect that Rosses Creek stream was not large, but that its waters did unite with the waters of Petersons Creek, where it commingled with other tributaries of Petersons Creek and flowed down to the Peterson Ranch. There was also evidence that the amount of surface waters varied with the seasons. During hot, dry months the surface flow would disappear during the heat of the day and reappear sometime during the night or the early morning hours when the temperature had become cooler.

Both Sigurd City and defendants produced experts to testify to the topography and geological condition of the surrounding terrain. As is usually the case in expert testimony, these experts disagreed as to the conclusions to be drawn from certain physical phenomena. Suffice it to say that the expert for the defendants was of the opinion that the physical aspects of the canyons and the streams indicated a subsurface stream because, as he said, as Rosses Creek the “unconsolidated rock is deep and wide and large quantities of water go through it. He accounted for the fact that the waters seemed to appear and disappear at intervals in Rosses Creek as being due to the fact that the subsurface flow was forced to the surface when the valley fill became narrower. A further fact from which this expert drew his conclusion that the waters of Rosses Creek flowed in a subsurface channel was the presence of willows and rabbit brush at the bottom of Rosses Creek Canyon, since this kind of vegetation grows only where there is a comparatively high water table. From these physical facts he drew the conclusion that very little water would be lost enroute from Rosses Springs to the springs and wells on Peterson Ranch although some, of couse, would be lost by transpiration and evaporation. It followed therefore, from his reasoning, that when Sigurd diverted the water at Rosses Springs the flow to the Peterson Ranch would be reduced by the amount taken.

With this conclusion an expert hydrologist testifying for Sigurd disagreed. It was the opinion of the hydrologist that due to the fact that the bed of Rosses Creek was porous the water sank but did not become part of the subsurface flow and therefore very little, if any, of the water of Rosses Springs ever reached Peterson Ranch.

The trial court found that the defendants were the owners of the two ranches located in Kings Meadow Canyon together with all of the waters used in connection with said lands. It further found that the waters of Rosses Creek including the seeps and springs sought to be con demned, are tributary of and flow into Petersons Creek which creek is a tributary of and flows into Kings Meadow Creek. That at Kings Meadow Creek the defendants and their predecessors in interest have diverted and beneficially used, during certain seasons of each year for more than fifty years, all of the waters flowing in that creek, including the waters which came from Rosses Creek and Petersons Creek, whether flowing above or underneath the surface of the ground. The foregoing facts are the basis of defendants’ water rights and there is no substantial dispute thereon and therefore they cannot be reversed. But the court in its findings of fact as well as in its conclusions of law and decree concluded from those facts that the defendants were the owners of all of the waters taken by plaintiff into its pipelines at Rosses Creek. Such conclusions, even though stated as findings of fact, are really conclusions of law, and to the extent that they are in conflict with the views herein expressed are not supported by the facts and are therefore set aside.

The court instructed the jury on this subject that the quantity of water “actually taken from defendants * * * must be fixed either at .19 or .24 of a cubic second foot or at some amount in between those two figures.” In addition thereto the court submitted a special interrogatory on this subject which, with the Jury’s answer is as follows:

“How much water in quantity was actually taken into plaintiff’s pipeline as of June 15, 1939? (This must be either at .19 or .24 of a cubic second foot or at some amount in between those two figures.) Answer: .24.”

As pointed out above there was a sharp conflict in the evidence as to how much, if any, of the waters of Rosses Creek which was taken by plaintiff into its pipelines would be lost by seepage and evaporation and would therefore never reach the defendants’ ranches at Kings Meadow, had it not been taken by the plaintiff. The court made no written finding of fact on this question, and did not submit it to the jury. But at the trial after all the evidence was in, in the presence of counsel, the court dictated into the record its findings of fact and on this subject said:

“* * * that there has been and is now a loss of water by way of evaporation and seepage to the ranch which at certain seasons of the year, runs as high as fifty per cent.”

The evidence was sufficient to sustain a finding that all of the waters taken by plaintiff into its pipelines at Rosses Creek would have reached defendants’ ranches, on the other hand, it was sufficient to justify a finding that as much as fifty per cent thereof at certain seasons of the year would be lost by seepage and evaporation and therefore could not reach the defendants’ ranches. In view of the foregoing facts the court must have concluded that it made no difference whether all or only a part of the waters taken by plaintiff into its pipelines at Rosses Creek ever reached or had been used by the defendants on their ranches. This could only be justified on the theory that the defendants were the owners of all of the waters which plaintiff took into its pipelines even though not more than half of it would reach their lands and be beneficially used thereon.

This was a misconception of defendants’ property rights in that water. They were not the owners of the body of water taken by the plaintiff into their pipelines, they were merely the owner of the right to use such waters as reached their lands and had been put to a beneficial use thereon. The water which was lost by seepage and evaporation before it got to their lands could not be beneficially used by them, and the plaintiff by taking such waters could not deprive the defendants of such waters.

“Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state.” U. C. A. 1943, 100-1-3.

Although this section of the statute was enacted in 1907, which is since the time the defendants appropriated their waters, the doctrine therein announced has always been the basis of the right to appropriate and use waters in this state. Adams v. Portage I. R. & P. Co., 95 Utah 1, 72 P. 2d 648; Whitmore v. Salt Lake City, 89 Utah 387, 57 P. 2d 726; Big Cottonwood Loioer Canal Co. v. Cook, 73 Utah 383, 274 P. 454.

The defendants were entitled to the use of all the water in Petersons Creek and its tributaries which reached their lands and had been appropriated and beneficially used thereon. To the extent that the plaintiff’s taking of the waters of Rosses Creek deprived the defendants of the use of water which would otherwise have been used upon their lands the plaintiff has taken the defendants’ water. That is the only property right, which as between the parties to this action, the plaintiff seeks to condemn. If there are other waters which plaintiff has taken at Rosses Creek, which on account of seepage and evaporation have never been placed to a beneficial use by defendants, plaintiff may appropriate such water under its application to appropriate which it filed with the State Engineer. The defendants are thus entitled to full compensation for all of the waters to the use of which they were deprived by the plaintiff’s taking of the waters at Rosses Creek. The quantity of water taken from the defendants by plaintiff is the difference between the volume and amount of water which would have actually reached the defendants’ ranches had the plaintiff not taken the waters at Rosses Creek and the volume and amount of water which actually reaches the defendants’ ranches since plaintiff has taken such waters. Thus defendants are entitled to compensation for the full volume and amount of water of which they are deprived by plaintiff’s action, even though a part of such waters are not taken into plaintiff’s pipelines. If there are waters which would have reached defendants’ ranches had plaintiff not taken the waters at Rosses Creek but which now, owing to the decrease in the volume of the flow of water in Petersons Creek, are lost to the defendants by seepage or evaporation or by other means, as a result of plaintiff’s taking of the waters at Rosses Creek, the defendants are entitled to compensation for such waters. It is not necessary that such waters be actually taken into plaintiff’s pipelines. All that is necessary is that the defendants be deprived of the use of such waters by some action of the plaintiff. See Hutchings on Water Rights in the West, p. 329; Rasmussen v. Moroni Irr. Co., 56 Utah 140, 189 P. 572; Whitmore v. Utah Fuel Co. et al., 26 Utah 488, 73 P. 764, and the same case on second appeal, 42 Utah 470, 131 P. 907.

True, these cases do not discuss the precise question here determined but do apply the rule here announced without discussion thereof. In Adams v. Portage I., R. & P. Co., supra [95 Utah 1, 72 P. 2d 653], Mr. Justice Larson, referring to the, right to use water, said:

«* * * jnterest * * * is merely the right to have water, in quantity and quality to satisfy his appropriation, come to his point of diversion.”

The court therefore erred in basing the defendants’ damages on the quantity of water taken into plaintiff’s pipelines at Rosses Creek and not on the quantity of water which the defendants would have placed to a beneficial use on their ranches and of which they were deprived by the plaintiff’s taking of the water at Rosses Creek.

In determining the volume and quantity of water, the use of which the defendants were deprived of, the burden is on the plaintiff to show by clear and convincing evidence that the defendants were not deprived of the use of as much water as the plaintiff took into its pipelines at Rosses Creek. Howcroft v. Union & Jordan Irr. Co., 25 Utah 311, 71 P. 487; Mountain Lake Mining Co. v. Midway Irr. Co., 47 Utah 346, 149 P. 929; Silver King Consol. Mining Co. v. Sutton, 85 Utah 297, 39 P. 2d 682; Midway Irr. Co. v. Smoke Creek M. & T. Co., 8 Cir., 271 F. 157, affirmed 260 U. S. 596, 43 S. Ct. 215, 67 L. Ed. 423; Bastian v. Nebeker, 49 Utah 390, 163 P. 1092. The Bastían case involved the same rights which are now owned by the defendants. Bastían claimed that he had developed waters which had not been appropriated by the defendants. The court held that he had failed to sustain his burden of proving by clear and convincing evidence that such waters were in fact developed waters. In so holding, the court of necessity held that had his evidence been sufficiently strong to show that the waters which Bastían claimed were in fact developed waters and had not been used by the defendants then Bastían would have been entitled to the use of such waters. This doctrine is also supported by the other cases cited. What is herein said is not intended to disturb the jury’s award of damages to defendants’ property not taken, but affected thereby.

This brings us to the assignment of errors relating to the instructions of the court on the question of damages.The court based the measure of damages upon the market value of the water for the purposes to which it was adapted as well as to the uses to which it had been put.

It is the theory of the plaintiff that if the facts warrant a finding that any of the water taken by it belonged to defendants, then under 15-7-4, R. S. U. 1933 (now 15-7-4, Utah Code Anno. 1943), the defendants are limited in their damages to the difference in the value of their lands with and without the water taken, and any incidental damage to the remaining water rights. The plaintiff bases its contention on the following sentence in the above section, to wit:

“In all condemnation proceedings the value of the land affected by the taking must he considered in connection with the water or water rights taken for the purpose of supplying the city or town or the inhabitants thereof with water.”

We cannot subscribe to this viewpoint. This provision does not limit or define the measure of damages which is sustained by the owner of a water right taken by eminent domain proceedings. Rather it secures to the owner the right to have the value of his land considered in connection with his water right. To hold otherwise would be to ignore Art. 1, Sec. 22 of the Constitution of Utah which provides that

“Private property shall not be taken or damaged for public use without jtist compensation.” (Italics ours.)

Mr. Justice Butler in the case of Olson v. United States, 292 U. S. 246, 54 S. Ct. 704, 708, 78 L. Ed. 1236, defined “just compensation” in eminent domain proceedings in a manner which we believe gives full regard to the principles and precepts of our form of government. He said in that case:

“Just compensation includes all elements -of value that inhere in the property, but it does not exceed the market value fairly determined. The sum required to be paid the 'owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect' of demand for such use affects the market value while the property is privately held.” Citing cases.

By this definition the owner of property is assured that his property cannot be taken from him for public purposes for any less sum than he would be able to obtain for it if he were willing to sell to a purchaser under no compulsion to buy.

In the case of Whitmore v. Utah Fuel Co., 42 Utah 470, 131 P. 907, which involved the question of the measure of damages for the diversion and taking of water belonging to the plaintiff by the defendant, this court specifically repudiated the theory that the measure of damages is the difference in the value of the land with and without the water. In that case we held that where the facts were such that no market value was ascertainable then the value of the water can be determined by the uses to which it had been put, and that the owner was entitled to be compensated for the full measure of his loss. Judge Straup in a concurring opinion expressed the view that we had unduly restricted the elements comprising the damages suffered by the owner. He expressed the view that the measure of damages should be the value of the water for the purposes to which it was adapted as well as the uses to which it had been put. In Shurtleff v. Salt Lake City, 96 Utah 21, 82 P. 2d 561, 564, this court in effect agreed with the views expressed by Justice Straup in the Whitmore v. Utah Fuel Co. case, supra. We said in the Shurtleff case:

* * if there is a demand on the market for those water rights, because those who make the demand think the rights can be put to more valuable use and are therefore willing to pay more for them, the owner is entitled to the benefit of that demand even though his own use of the rights may be limited.”

We believe this to be just. Where an owner is deprived of his property rights in condemnation proceedings he should be compensated for the inherent value of his property in cases where there is no readily ascertainable market value. The fact that defendants had used the water for irrigation purposes does not limit the value of the water to them since 100-3-3, Utah Code Anno. 1943, provides that upon application to the State Engineer an appropriator may change the use of his water.

Plaintiff also assigned as error the refusal of the court to strike defendants’ cost bill.

On April 3, 1940, the jury brought in a verdict in favor of defendants. On April 8, 1940, defendants served and filed their cost bill. Plaintiff moved to strike this bill on the ground, among* others, that it was prematurely filed, entry of judgment on the verdict being stayed by the court.

On May 14, 1940, the court filed its findings of fact and conclusions of law. On May 20, 1940 (May 19 being a Sunday), defendants served and filed a second cost bill which was the same as the first cost bill. Plaintiff moved to strike this cost bill on the same grounds alleged in its motion to strike the first cost bill.

On the 23rd day of May, 1940, the court signed the judgment, this was filed on the 27th day of May, 1940. The defendants served and filed a third cost bill on the 3rd day of June, 1940. Plaintiff moved to strike this cost bill on the ground that it was not served or filed within time.

That part of 104-44-14, Utah Code Anno. 1943, which is applicable reads as follows:

“The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk, and serve a copy upon the adverse party, within five days after the verdict or notice of the decision of the court or referee, or, if the entry of the judgment on the verdict or decision is stayed, before such entry is made, a memorandum of the items of his costs and necessary disbursements in the action or proceeding * *

It is apparent from the fact, as shown above, that three different cost bills were filed at three different times that the defendants were uncertain under the facts and circumstances of this case when the time to file their cost bill began to run.

The parties in this case had agreed by stipulation that the court was to try the question of title and the jury the question of damages. The verdict of the jury was final as to the question of damages and was not merely special findings of fact, even though the court may have regarded it as advisory. Since the party in whose favor judgment is rendered may file his cost bill within five days after the verdict, it is apparent that this bill was not filed prematurely even though the court had stayed the entry of judgment. Any time after the verdict and before entry of judgment (where entry is stayed) is timely.

The second cost bill was served and filed after the court had signed and filed its findings of fact and conclusions of law. Ordinarily the findings of fact and conclusions of law constitute the decision of the court. See Harris v. Chapman, 1931, 51 Idaho 283, 5 P. 2d 733. The second cost bill having been filed after the decision of the court was made was not premature for the same reason that the first cost bill was timely.

The court filed its judgment on May 27, 1940. On June 3, 1940, defendants filed their third cost bill. This bill was for an amount somewhat less than the two previous cost bills. The record is silent as to when the clerk entered the judgment in the docket book. This court cannot determine therefore whether or not the filing of the third cost bill was timely because our statute clearly indicates that where the entry of judgment on the verdict or decision is stayed then the only time limit on the filing and serving of a cost bill is that it be done before the, entry of the judgment. In view of the silence of the record on this fact, this court will not as a matter of law say that the court erred in refusing to strike this cost bill. The court might well have considered all three cost bills as one.

The court did not err in refusing to strike the cost bill, nor does the plaintiff have any cause for complaint, especially in view of the fact that the court eventually taxed the costs at the lower figure.

Judgment reversed with instruction to proceed in accordance with the views expressed in this opinion. Costs to appellants.

WOLFE, C. J., and McDONOUGH, J., concur.