Statement of the Case.

particular in which the accused was deprived of any right or immunity secured to him under the laws or Constitution of the United States, and the judgment of the Supreme Court of Louisiana is accordingly

Affirmed.

SALINA STOCK COMPANY v. SALINA CREEK IRRIGATION COMPANY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 191. Submitted March 81, 1696.- Decided May 18, 1896.

Without denying its power to pass upon a judgment of the Supreme Court of a Territory on a question of practice, in an equity case, this court is not inclined to do so unless it can perceive that injustice has been done.

THE Salina Creek Irrigation Company, a corporation organized under the laws of the Territory of Utah for the purpose of controlling and regulating the waters of Salina Creek, in that Territory, and of furnishing and distributing the same to and among its stockholders, filed its complaint in the District Court of the First Judicial District of the said Territory on February 11, 1890, against the Salina Stock Company, a Utah corporation engaged in the business of stock raising upon a ranch in Sevier County, about twenty-two miles east of the town of Salina, in that county, and Elwin A. Ireland, alleging that the stockholders of the plaintiff company were owners in severalty of lands in the said county aggregating eighteen hundred and sixty-two acres, situated at or near Salina, which lands were valuable for agricultural purposes, but would not produce crops without irrigation; that the greater part of Salina Creek, which flowed in a westerly direction to Salina and to the said lands, was supplied by two branches known, respectively, as Yogo Creek and Neoche Creek; that for more than fifteen years prior to the commis. sion of the injuries complained of, the plaintiff, its stock

Statement of the Case.

holders and grantors, had been diverting and appropriating, at and near Salina, all the waters of Salina Creek, (the same, as alleged, being otherwise unappropriated,) and had been using the same for domestic purposes and for irrigating their lands, and that for these uses all the water of said creek, when the flow thereof was uninterrupted, was necessary and not more than sufficient. It was averred that at frequent times within the six years next preceding the filing of the complaint the defendants, by means of dams and ditches by them constructed, diverted large quantities of the waters of Yogo and Neoche Creeks, and in the years 1888 and 1889 so diverted nearly all the waters thereof, and thereby greatly diminished the flow of water in Salina Creek; that these acts had been done without the consent of the plaintiff and greatly to the loss and damage of its stockholders, and that the defendants threatened to continue so to divert the said waters, and would so do, to the great and irreparable injury and loss of the plaintiff and its stockholders, unless restrained by injunction. The plaintiff asked, therefore, that the defendants be perpetually enjoined from diverting, appropriating or in any manner interfering with the waters of Yogo and Neoche Creeks.

The defendants filed their answers on March 27, 1890, averring therein that for more than ten years then last past they and their grantors had been entitled to the use, for agricultural, domestic and stock raising purposes, of all the waters of Yogo and Neoche Creeks, by virtue of actual diversion thereof and continuous appropriation of the same for the said purposes during the said period, and were so entitled at the time of the filing of their answer, and that neither the plaintiff company nor its stockholders had any rights with relation to the waters of the said two creeks. They asked for a decree quieting their title.

The court tried the case without a jury, and subsequently filed its finding of facts, which was as follows:

"That the said waters of Neoche and Yogo Creeks flow into and mingle with the waters of Salina Creek, in Sevier County, Utah, and flow down through the bed of said last mentioned creek to and past the lands of the stockholders

Statement of the Case.

of said plaintiff corporation; that in and during the years 1871, 1872 and 1873 the said stockholders of the plaintiff corporation, their predecessors and grantors, diverted from the natural bed or channel of Salina Creek below the confluence of Yogo and Neoche Creeks with Salina Creek, and used and appropriated upon lands adjacent thereto, all the waters of said Salina Creek during the whole of the period from the 15th day of June until the 1st day of November of each and every year, and that during the period from the 1st day of November until the 1st day of April following the water was by said stockholders, their predecessors and grantors, used for domestic and culinary purposes and for the watering of stock, and that during the period from April 1 until June 15 only a small part of the waters of said creek were used. That all of said water was so, as aforesaid, diverted, used and appropriated for culinary, domestic and agricultural purposes, and was necessarily consumed in the households and in the watering of stock and upon agricultural crops. That the waters of said creeks have been continuously since said appropriation so made as aforesaid up to the time of the filing of the complaint herein and are now so diverted, used and appropriated.

"That during the months of April, May and one half of the month of June the waters of said Neoche and Yogo Creeks are high and the flow thereof is greater than is necessary for or than has been used or appropriated by plaintiff corporation or its stockholders, and that the waters of said creeks which were so unused and unappropriated by said plaintiff or its stockholders have been used and appropriated by defendants. That whatever rights in and to the waters of said creeks are owned or held by the said defendants, the same are secondary and servient to the rights of plaintiff.

"That before the commencement of this action the stockholders of plaintiff corporation by their several deeds in writing conveyed to plaintiff corporation all their several rights, titles and interests in and to the waters of Neoche and Yogo Creeks in trust, as hereinbefore stated, and the plaintiff corporation is now the legal owner and holder of said waters and of the rights therein and has the primary right to use control

Statement of the Case.

and divert the same in the manner and to the extent as hereinbefore set forth."

The court also filed its conclusions of law, and these were embodied, in effect, in the following decree, entered February 14, 1891:

"It is ordered, adjudged and decreed that the plaintiff, Salina Creek Irrigation Company, is entitled to the use and appropriation of all the waters flowing, or to flow through, or in those certain creeks known as Yogo and Neoche Creeks, in Sevier County, Utah Territory, during the period from the 15th day of June to the 1st day of November in each and every year; that the said plaintiff is also entitled to the use and appropriation, for culinary and domestic purposes and for the purpose of watering animals, of so much of the waters of said creeks as it may need or require to use during the period from the 1st day of November to the 1st day of April following of each and every year, and that it is entitled to the use and appropriation, for culinary and domestic use, and for the watering of stock and for agricultural purposes, of water from said creeks during the period from April 1st to the 15th of June of each and every year, and that during the last named period the said defendants are also entitled to the use of a portion of the waters of said creek; and it is further ordered, adjudged and decreed that the said defendants, Salina Stock Company and E. A. Ireland, and each of them, and their and each of their servants, agents and employés, be, and they are hereby, perpetually enjoined and forbidden from in any manner using or diverting any of the waters of said Yogo and Neoche Creeks during the period from the 15th day of June until the 1st day of November in each and every year, so as in any manner or to any extent to injure the quality or lessen the flow of said streams or either of them into Salina Creek; and said defendants and each of them are further restrained and enjoined from in any manner diverting, using or appropriating the waters of said creeks during the period from the 1st day of November until the 1st day of April following of each and every year so as in any manner to deprive the said plaintiff corporation or its stockholders of the use of sufficient

Statement of the Case.

of the waters of said creeks for culinary and domestic purposes, and for the watering of stock. And said defendants and each of them are further perpetually restrained and enjoined from in any manner using the waters of said creeks. or either of them during any portion of the year or at all so as in any manner to lessen, injure or deteriorate the natural quality thereof."

The defendants moved for a new trial, and their motion having been overruled, they appealed to the Supreme Court of the said Territory, assigning as error, among other things, that there was no evidence to justify the finding and decree of the trial court, and that the decree was so uncertain that the rights of neither of the parties could be ascertained under it.

The said Supreme Court heard and decided the case, and on September 12, 1892, filed its opinion therein, which, after discussing the evidence as it appeared in the defendants' statement on motion for a new trial, observed that it was shown thereby that in the year 1878 the defendants or their grantors diverted a portion of the waters of Yogo and Neoche Creeks several miles above Salina, and continued such diversion during the spring, summer and fall of each year up to the time this action was commenced, for stock raising and culinary purposes, and for the purpose of irrigating land on those tributaries; that those two streams furnished about one third of the waters of Salina Creek, and emptied into it above the land irrigated by the plaintiff; that although a number of the grantors of the plaintiff company were residents of Salina and appropriators of water from Salina Creek prior to the time of the appropriation by the defendants' grantors of the waters of Yogo and Neoche Creeks, no specific rights with relation to the waters of Salina Creek existed in all the grantors of the plaintiff prior to the time when the defendants or their grantors appropriated water from Yogo and Neoche Creeks; that the plaintiff's grantors did not make appropriation of all the waters of Salina Creek prior to the time when the defendants' grantors appropriated nearly all the waters of Yogo and Neoche Creeks in 1878. The opinion then proceeded as follows:

VOL. CLXI-8