Baxter v. Gilbert

GAROUTTE, J. This action was brought to test .the respective rights of plaintiffs and defendants to the waters of Little Pine and Pinyon creeks, and also the waters of certain lakes situated high up in the mountains and forming in a great measure the source of supply of Little Pine creek. Judgment was rendered largely in accordance with the claims of plaintiffs, decreeing that defendants Maiers and Gilbert had no-rights in such waters and perpetually restraining them from any interference therewith. Maiers and Gilbert claimed to be appropriators of a certain quantity of the waters, and appeal [581]from the order denying their motion for a new trial. Plaintiffs are riparian owners on Little Pine creek, and also appropriates. The position of appellants is not sharply defined by their briefs, and we are not entirely satisfied whether their main contention here rests upon the claim of the insufficiency of the evidence to support the findings of fact, or upon erroneous conclusions of law made by the trial court, based upon these findings.

It appears to be conceded that the plaintiffs and the non-appealing defendants are entitled to all the waters of Little Pine creek, and its tributary, Pinyon creek, which naturally flow within the banks of Little Pine creek. But these appellants insist that there is a surplus of water at certain seasons of the year, which arises from the overflow of Little Pine creek, and they claim this surplus. The modus opemndi for the creation of this surplus water is as follows: Appellants filed three appropriation notices of location of waters. By their first notice they claimed five thousand inches of water measured under a four-inch pressure of a certain lake (describing it), and stating that said waters would be diverted from said lake “by means of an open cut about three hundred feet long by six feet wide and ten feet deep, and will be thus turned into and mingled with the waters of Kersarge creek (Little Pine creek), to be diverted therefrom at a point .... by a ditch four feet deep by seven feet wide and about two miles long, into the tract of land hereinbefore named.” By their second notice of location they likewise claimed five thousand inches of water, under the same pressure, of a certain lake (describing it), and stating that said waters would be diverted “by means of an open cut about three hundred feet long by six feet wide and ten feet deep, and will be thus turned into and mingled with the waters of Kersarge creek (Little Pine creek), to be diverted therefrom at a point .... by a ditch.”' By their third notice of location they claimed ten thousand inches of surplus water of Little Pine creek measured under a four-inch pressure. “Said waters will be diverted from said creek at a point where the notice is posted, by means of a ditch four feet deep and ten feet wide and about three miles long.” It will be conceded that these two aforesaid lakes largely form the reservoirs