Richmond Irr. Co. et al. v. Shaw et al., 54 Utah 379. 1 The evidence is conflicting as to the use of the water of the Lars Johnson springs by plaintiffs from 1907 until 1915, but, as the trial court was in a much better position to determine from the testimony the ultimate facts than we are, we are not justified in interfering with findings made upon conflicting testimony, unless they are clearly against the weight of evidence. Plant v. Ritter, 47 Utah, 506. 155 Pac. 426; Woolf v. Gray, 48 Utah, 239, 158 Pac. 788; Folsom v. Fernstrom, 43 Utah, 432, 134 Pac. 1021; Mayer v. Flynn, 46 Utah, 598, 150 Pac. 962. It is undisputed that from the time that Lars Johnson occupied the Steffensen land in 1888 until plaintiffs attempted to interfere with it there was a stream from the Lars Johnson spring, or Spring No. 3, that had been used by Johnson and his successors in interest for domestic, culinary, and stockwatering purposes. The district court found that the defendant Christian Steffensen is entitled to have sufficient of the waters of Cherry creek and its tributaries flowing in the natural channel thereof past his dwelling house to supply his needs for domestic and culinary uses and for the watering of his stock. The decree is in accordance with the conclusions of law on this subject. In our opinion the conclusion of law should have been that Steffensen should have sufficient of the waters of the Lars Johnson spring, and not generally of Cherry creek and its tributaries, for his use for the purposes mentioned, and such right should have been awarded him by the decree. Steffensen is entitled to the use of the water from that particular spring, and to the use of sufficient water for all of his domestic and culinary purposes and for watering stock, and is entitled to have the waters of that spring conducted to his dwelling and to other points at which he had used the water. Plaintiffs had no right to interfere with that use, and had no right, without Steffensen's consent, to divert the waters from Spring No. 3, even though they had supplied Steffensen with other water from a different spring or from some other source. The conclusions of law and the decree should be modified so as to provide that Steffensen have the use of water from the Lars Johnson spring, or Spring No. 3, Appeal from First District. 2 sufficient for his domestic, culinary, and stock-watering purposes, and that plaintiffs shall be entitled to the use of the waters of the Lars Johnson spring subject to the rights. of Steffensen as hereinbefore stated. As there was no evidence before the court from which the amount of water used by Steffensen for those purposes could be determined, the decree is necessarily indefinite and uncertain. In order that this litigation be ended and the rights of the parties be determined as far as the Lars Johnson spring, or Spring No. 3, is concerned, the district court is hereby directed to reopen the case for the purpose of permitting said Steffensen, if he so desires, to introduce testimony showing the amount of water heretofore used by him and his predecessors in interest from said Lars Johnson spring, or Spring No. 3, for the purposes before stated. Appellant complains that in the decree the Steffensen property, and upon which these springs are situated, is misdescribed. That is merely a clerical error, and the court is hereby directed to make the correction in the decree in accordance with the facts. 3 The taxation of all costs against Steffensen is one of the assignments of error. As Steffensen concededly has the right to the use of a certain amount of the waters from the Lars Johnson spring, and as he was not wrong in his objections to the actions of the plaintiff Richmond city in laying the pipe line, and as he was brought into court by the other parties, we are wholly unable to perceive why, in justice and equity, all the costs of plaintiffs should be taxed against him. The district court is therefore ordered to further modify the decree herein by eliminating the costs taxed against the defendant Steffensen, and it is hereby ordered that respondents pay one-half and appellant one-half of the costs on appeal, and each pay his own costs in the district court. Save as herein modified, the judgment is affirmed. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur. Arrascada et al. v. S. K. Coalition Mines Co. et al., 54 Utah 386. ARRASCADA et al. v. SILVER KING COALITION MINES CO. et al. No. 3300. Decided April 21, 1919. (181 Pac. 159.) - INJURIES ΤΟ 1. MASTER AND SERVANT SERVANT-NEGLIGENCE. Where a mining company's employé directed to do a particular thing which might be more dangerous than what he was doing, in that he might encounter danger from above where two other employés were working, inquired of them if it was safe, receiving an affirmative answer, and not until then proceeded upward toward them, and was struck by a falling rock, the company was liable if its other employés inquired of were negligent. (Page 391.) 2. 3. 4. 5. QUES MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE MASTER AND SERVANT-FELLOW SERVANTS QUESTIONS FOR JURY. Appeal from District Court, Third District, Salt Lake County; P. C. Evans, Judge. 1 Dryburg v. Mercur Gold M. & M. Co., 18 Utah, 410, 55 Pac. 367; Miller v. Utah, Con. M. Co., 53 Utah, 366, 178 Pac. 771; Urich v. Apex Min. Co., 51 Utah, 206, 169 Pac. 263; Vota v. Ohio Copper Co., 42 Utah, 129, 129 Pac. 349; Shields v. Silver King M. Co., 50 Utah 128, 166 Pac. 988; Shepherd v. Railroad Co., 41 Utah, 469, 126 Pac. 692. 2 Johnson v. Silver King Con. M. Co., 54 Utah, 34, 179 Pac. 61. Appeal from Third District Action by Vicenti Arrascada and others, by Joel Nibley, their guardian ad litem, and Carmen Arrascada, against the Silver King Coalition Mines Company, and others. From judgment against the named defendant, it appeals. AFFIRMED. Dickson, Ellis & Lucas and Marioneaux & Beck, all of Salt Lake City, for appellant. Van Cott, Riter & Farnsworth and E. O. Leatherwood, all of Salt Lake City, and W. A. Stone of Caldwell, Idaho, for respondents. APPELLANT'S POINTS. The law recognizes absolute safety is unattainable, and that employers are not insurers of the safety of their employes, and that employers are liable for the consequences, not of danger, but only of their negligence. Fritz v. Electric Co., 18 Utah 493; Roth v. Eccles, 28 Utah 456. The burden did not rest upon defendant to show that Breen and Allen-were fellow servants of deceased. On the contrary the burden rested upon plaintiff to show that they were not such fellow servants. Braegger v. Ry. Co., 24 Utah 391. RESPONDENT'S POINTS. The proposition that a servant to whom is delegated the duty of making a place safe, warning a servant of transitory dangers, etc., is a vice-principal, is discussed by Labatt in section 1471 of volume 4 of his treatise. This doctrine is announced by the Utah Supreme Court in the following cases: Downey v. Gemini Mining Co., 24 Utah, at 442-3; Trihay v. Mining Co., 4 Utah 468. Deceased and the miners were not in the same grade of service. Even at common law, as construed by the Supreme Court of Utah before the enactment of our fellow service stat Arrascada et al. v. S. K. Coalition Mines Co. et al., 54 Utah 386. ute, these men would not have been held to be fellow servants. Vota v. Ohio Copper Co., 42 Utah 129. WEBER, J. The minor children of Vicenti Arrascada, by their guardian ad litem, and Carmen Arrascada, his widow, commenced this action against the Silver King Coalition Mines Company and Evelyn Allen and Howard Breen employés of the mining company for damages sustained through the death of the husband and father as a result of the defendants' alleged negligence. Judgment was obtained in the district court of Salt Lake county against the defendant Silver King Coalition Mines Company. The cause of action against Allen and Breen was dismissed during the progress of the trial. The defendant corporation appeals. The following is a brief recital of the material facts which the testimony introduced by plaintiffs tended to prove. The defendant owned and operated the Alliance mine at Park City, Utah. On July 14 and 15, 1916, it was engaged in the construction of a three-compartment chute extending from the 900-foot level of the mine upwards to the 700-foot level. The chute was constructed of lumber and timber. The middle compartment was a manway, and the others were for the purpose of carrying ore. On July 14th the chute had been constructed to the height of about 100 feet above the 900-foot level. The top of the chute was about eight feet below the top of the raise in which the chute was being constructed. The deceased was employed by the defendant on July 14, 1916. Until he was injured the next day he assisted in the construction of the chute. As the result of an accident occurring July 15, 1916, caused by the alleged negligence of the defendant, Arrascada died on May 17, 1917. In a deposition taken before his death, and read in evidence at the trial, Arrascada testified to the effect that the miners or machine men were drilling in the ground above him and above the threecompartment chute on July 15, 1916, the day of the accident; that he had nothing whatever to do with their work; that he |