Appeal from district court, First district; before Justice HENDERSON. P. L. Williams, for garnishee, appellant. A. R. Heywood, for respondent. ZANE, C.J. The respondent, H. Losee, commenced this action on the 14th day of September, 1887, in the First district court of Ogden, Utah, against the defendants, Ream and McCarty, and afterwards obtained a judgment against the former for the sum of $497. At the time of commencing this action, the plaintiff also sued out a writ of attachment therein against Ream, that was served upon the Union Pacific Railway Company as garnishee. The company answered that it was indebted to Ream in the sum of $204, but that the indebtedness was contracted in Idaho territory, and that it was not subject to garnishment, therefore, in Utah. It appears from the record that the Union Pacific Railway Company is a corporation under the laws of the United States, and is operating its road and doing business in this territory, where the service of the writ was made on it. It must therefore by this court be regarded as a domestic corporation of Utah. 2 Mor. Priv. Corp. § 984. Being a domestic corporation of this territory, the writ of attachment issued out of the First district court was rightfully served on it in that district, and the debt was properly garnished. The order appealed from is affirmed. HENDERSON, J., concurs. (5 Utah, 530) BOREMAN, J., dissents. FARRELL V. PINGREE. (Supreme Court of Utah. March 2, 1888.) APPEAL-REHEARING-ERRORS NOT RAISED ON FIRST HEARING. An application for a rehearing cannot be based on alleged errors in the court below. If deemed important, the attention of the court should have been called to them on the original hearing. Appeal from district court, First district; before Justice HENDERSON. On application for a rehearing. For former report of this case, see 16 Pac. Rep. 843. C. C. Richards, for appellant. Smith & Smith, for respondent. BOREMAN, J. This application is based upon an alleged error in the lower court. It is too late to bring such a matter to the attention of this court at this time. It should have been brought to our attention at the former hearing, if it was deemed important. Rehearing is denied. ZANE, C. J., and HENDERSON, J., concur. (2 Ariz. 371) CLOUGH v. WING. (Supreme Court of Arizona. February 20, 1888.) 1. INJUNCTION-WHEN GRANTED. The claim of a right by a defendant will not be sufficient for the exercise of relief by injunction; there must be an injury done or threatened. 2. WATERS AND WATER-COURSES-WATER-RIGHTS. A person has no right to water he does not use for some beneficial purpose. 3. SAME-APPROPRIATION-EXTENT OF Right. A person may appropriate to his use the waters of a non-navigable stream, and maintain his right thereto against everybody to the extent of his use. Others may appropriate subject to his right. 4. SAME-WHAT CONSTITUTES. Appropriation is the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use, and consummated without unnecsary delay. 5. SAME RIGHTS OF RIPARIAN OWNERS. The rights of riparian owners in the waters of a non-navigable stream, as defined by the common law, do not exist in this territory. In Arizona, all the waters of nonnavigable streams are devoted to agriculture by means of irrigation. 6. SAME-EVIDENCE-JUDICIAL NOTICE. The courts take knowledge of the "local customs, laws, and decisions of courts" as to the use of water. (Syllabus by the Court.) Appeal from district court, Yavapai county; SHIELDS, Judge. Bill filed by A. S. Clough to enjoin James E. Wing from using water from Granite creek, to his injury. Judgment for defendant, and plaintiff appeals. John A. Rush and E. W. Wells, for appellant. Herndon & Hawkins, for appellee. BARNES, J. This was a complaint filed by Clough in which he sought to enjoin defendant, Wing, from taking water from Granite creek, to his injury. He alleges that he has occupied a tract of land, about 200 acres, describing it, and has for some 15 years cultivated the same in cereals, and has set out orchards and vineyards, and that the same have by his husbandry become of great value; that except by irrigation these results could not have been accomplished, and without constant continuance of the same all would be lost; that in the year 1869 he located and appropriated sufficient of the waters flowing in Granite creek to properly irrigate the same by building flumes and digging canals in which to convey the said water from said creek upon his lands, and so he did convey the water from said creek, and did use said water as aforesaid until now; that, in 1884, defendant, knowing of plaintiff's prior right and appropriation of said water, settled upon and occupied lands on said creek above plaintiff, and placed dams and other obstructions to the flow of the water in said creek, and constructed flumes and ditches for the purpose of diverting said water, and irrigating his lands; that between the 15th and 29th of June, 1885, he was thereby deprived of sufficient water to irrigate his lands. He prays that defendant be perpetually enjoined from using any of the water of Granite creek when needed by plaintiff as aforesaid. Defendant sets up his appropriation of water in 1884, and his use thereafter of enough to irrigate his lands, and that he has made valuable improvements, set out orchards, etc., and he alleges that plaintiff's flumes and ditches were out of repair, and wasted the water; that plaintiff in 1885 made further and additional appropriation of water by widening and building up his dam, but so that the water seeped through the same, and was lost; and denies that the water appropriated and used by him hindered plaintiff in the use of the amount of water appropriated by him, and to the use of which he had a right. Issues were framed in the form of eight questions, and a jury was impaneled to try said issues. The evidence is very voluminous as to the amount of water flowing in Granite creek, and as to whether defendant's use deprived plaintiff of the water he needed; as to the capacity of his flume, etc.,--all directed to the question whether he was injured by defendant's use of the water. The jury answered the questions, but the court saw fit to disregard the verdict of the jury, which, as an issue out of chancery, could be only advisory, and decided the case. The court found that the evidence showed that "at the time of the alleged wrong, and at all times since defendant went upon his lands, there was and has been water enough for both parties." A careful consideration of the evidence leads us to the same conclusion. This fact settled, the plaintiff had no right to the relief he sought. Barnes v. Sabron, 10 Nev. 217; Atchison v. Petersen, 20 Wall. 507; Basey v. Gallagher, Id. 670. In the former case the court say: "If the plaintiff did not require the full amount of his appropriation, he could not hold the defendant responsible in damages for not turning it down to him; he was only entitled to as much water within his original appropriation as was necessary to irrigate his land, and was bound under the law to make a reasonable use of it. In a dry, arid country like Nevada, where the rains are insufficient to moisten the earth, and irrigation becomes necessary for the successful raising of crops, the rights of prior appro priators must be confined to a reasonable and necessary use. The agricultural resources of the state cannot be developed, and our valley lands cannot be cultivated without the use of water from the streams to cause the earth to bring forth its precious fruits. No person can, by virtue of a prior appropriation, claim or hold any more water than is necessary for the purpose of the appropriation. Reason is the life of the law; and it would be unreasonable and unjust for any person to appropriate all the waters of a creek when it was not necessary to use the same for the purposes of his appropriation. The law which recognizes the vested rights of prior appropriators has always confined such rights within reasonable limits." And in the latter case the same proposition: "For this right to water, like the right by prior occupancy to mining grounds, is not unrestricted. It must be exercised with reference to the general condition of the country, and the necessities of the people; and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual." Again, in the same opinion, it is further stated: "We think the rule is well settled, upon reason and authority, that, if the first appropriator only appropriates a part of the waters of a stream for a certain period of time, any other person or persons may not only appropriate a part or the whole of the residue, and acquire a right thereto as perfect as the first appropriator, but may also acquire a right to the quantity of water used by the first appropriator at such times as not needed or used by him. In other words, if plaintiff only appropriated the water during certain days in the week, or during a certain number of days in a month, then defendants would be entitled to its use in the other days of the week or the other days in the month." These cases state a doctrine very different from the common law. That law had its origin in the island of Great Britain, under conditions of climate peculiar to its position, in the path of the Gulf stream, in an atmosphere laden with moisture, which is precipitated with lavish profusion upon that favored spot. That law gave to the servient and dominant heritage the right to the natural flow of the water. The riparian owner might use the water in its course to turn his water-wheel, or for other purposes, but was required to restore the same to its natural course. While he might not hinder the flow so as to injure those below him, he might depasture his domestic animals so as to drink therefrom, and take water for domestic uses. He might not drain his land so as to increase the flood to injure those below, or dam the water back upon the lands above him. 1 Inst. 4; 2 Bl. Comm. 18; Ang. WaterCourses, 8; 3 Kent, Comm. 561; Elliott v. Fitchburg Co., 10 Cush. 193; Wright v. Howard, 1 Sim. & S. 190; Lux v. Haggin, 4 Pac. Rep. 919; Weiss v. Steel Co., 11 Pac. Rep. 255; Hill v. Lenormand, (Ariz.) 16 Pac. Rep. 266; Ware v. Allen, (Mass.) 5 N. E. Rep. 629; Mason v. Cotton, 4 Fed. Rep. 792; Dumont v. Kellogg, 29 Mich. 420; Jones v. Adams, (Nev.) 6 Pac. Rep. 442; Pyle v. Richards, (Neb.) 22 N. W. Rep. 370; Van Orsdale v. Railway Co., (Iowa,) 9 N. W. Rep. 379; Railway Co. v. Dyche, (Kan.) 1 Pac. Rep. 243; Red River Co. v. Wright, (Minn.) 15 N. W. Rep. 167; Creighton v. Irrigation Co., (Cal.) 7 Pac. Rep. 658; Moore v. Clearlake Co., (Cal.) 5 Pac. Rep. 494; Wilcox v. Hausch, (Cal.) 3 Pac. Rep. 108: Larimer Co. v. People, (Colo.) 9 Pac. Rep. 794; Garwood v. Railway Co., 83 N. Y. 400; Railroad Co. v. Miller, (Pa.) 3 Atl. Rep. 780; Totel v. Bonnefoy, (Ill.) 14 N. E. Rep. 687; Peck v. Herrington, 109 Ill. 611. The problem there to be solved was how best to drain the water off the land, and get rid of it; not how to save it. to be conducted upon the land in aid of the husbandman. The latter has been the problem in the arid portions of the earth. From "time whereof the memory of man runneth not to the contrary," the rights of riparian owners were settled in the common law; and the right to appropriate and use water for irrigation has been recognized longer than history, and since earlier than tradition. Evidences of it are to be found all over Arizona and New Mexico in the ancient canals of a pre-historic people, who once composed a dense and highly civilized population. These canals are now plainly marked, and some modern canals follow the track and use the work of this forgotten people. The native tribes, the Pimas and Papagoes and other pueblo Indians, now, as they for generations have done, appropriate and use the waters of these streams in husbandry, and sacredly recognize the rights acquired by long use, and no right of a riparian owner is thought of. The only right in water is found in the right to conduct the same through their canals to their fields, there to use the same in irrigation. The same was found to prevail in Mexico among the Aztecs, the Toltecs, the Vaquis, and other tribes at the time of the conquest, and remained undisturbed in the jurisprudence of that country until now. It existed, also, in Peru, though there the appropriation was by the state, which constructed and maintained the canals so as to provide water for the use of the tillers of the soil. The Spanish conquerors brought the same ideas with them from Spain, where they prevailed then as now. Escriche, tit. "Agua," §§ III., IV., and "Acequia." "The Lombard kings, following the Roman practice, encouraged and extended irrigation in Italy. From Lombardy the art extended to France; while the Moors encouraged it in Spain, Sicily, and Algeria." Ency. Brit. (9th Ed.) "Necessity required it in the districts which comprise parts of the south of Spain, Portugal, and Italy, including Sicily and Greece." Id. Ruins of ancient irrigating works are found in Spain. Id. In Egypt, and in some parts of Persia, India, and China, this form of husbandry has been practiced from time immemorial, and still continues. Under the civil law, water was publici juris, and by that law the "first person who chooses to appropriate a natural stream to a useful purpose has title against the owner of the land below, and may deprive him of the benefit of the natural flow of the water." Per DENMAN in Mason v. Hill, 5 Barn. & Adol. 1. Thus we see that this is the oldest method of skilled husbandry, and probably a large number of the human race have ever depended upon artificial irrigation for their food products. The riparian rights of the common law could not exist under such systems; and a higher antiquity, a better reason, and more beneficent results have flowed from the doctrine that all right in water in non-navigable streams must be subservient to its use in tilling the soil. Recognizing these principles, the act of congress March 26, 1866, extended them over the public domain wherever applicable; and all patents (16 St. U. S. § 17) to land are subject to these rights to the use of water. By that act it is provided that "whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.” The legislature of Arizona at its first session, in 1864, enacted that (C. L. 3240) “all rivers, creeks, and streams of running water are hereby declared public, and applicable to the purposes of irrigation and mining; [3242] all the inhabitants who own or possess arable and irrigable lands shall have the right to construct public or private acequias [canals] and obtain the necessary water for the same from any convenient river, creek, or stream of running water;" (3243) and prohibits the obstruction of such canals, "as the right to irrigate the fields shall be preferable to all others." Up to about a third of a century ago, and but recently before this enactment, the territory of Arizona had been subject to the laws and customs of Mexico, and the common law had been unknown; and that law has never been, and is not now, suited to conditions that exist here, so far as the same applies to the uses of water. Atchison v. Petersen, supra: Basey v. Gallagher, supra; McClintock v. Bryden, 5 Cal. 100; People v. Canal Appraisers, 33 N. Y., 482; Barnes v. Sabron, supra; Ophir Co. v. Carpenter, 4 Nev. 534; Lobdell v. Simpson, 2 Nev. 274; Strait v. Brown, lö Nev. 317; Crane v. Winsor, 2 Utah, 248; Schilling v. Rominger, 4 Colo. 100; Canal Co. v. Hoyt, 57 Cal. 44. See Lux v. Haggin, 4 Pac. Rep. 919; Judkins v. Elliott, (Cal.) 12 Pac. Rep. 116; Kaylor v. Campbell, (Or.) 11 Pac. Rep. 301. For a discussion of the Mexican law, see Lux v. Haggin, 10 Pac. Rep. 705-719; Editorial Notes, (Pomeroy,) 1 and 2 West Coast Rep. The "local customs" of the act of 1866, so far at least as it refers to rights to the use of water, is not a mere usage or custom, requiring proofs of undisturbed continuance beyond the memory of man. 1 Greenl. Ev. § 128. The courts take knowledge of them as of the public laws. "The general customs and usages of merchants, as well as the public statutes and general laws and customs of their own country, as well ecclesiastical as civil, are recognized, without proof, by the courts of all civilized nations." 1 Greenl. Ev. § 5, and cases cited. In Atchison v. Petersen the court, without proof, took knowledge of the existence of these customs; so, of judicial decisions. The court below did not err, therefore, in excluding the judgment roll offered by plaintiff; and the oral proof of local custom could do no harm, but was not necessary. What constitutes such appropriation is largely a question of fact. The supreme court of California defines the word "appropriation" as follows: "This appropriation is the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use," (McDonald v. Bear River Co., 13 Cal. 220;) and the supreme court of Colorado, quoting, approves this definition. "When the individual, by some open, physical demonstration, indicates an intent to take for a valuable or beneficial use, and, through such demonstration, ultimately succeeds in applying the water to the use designed, there is such an appropriation." "While a diversion must of necessity take place before the water is actually applied to the irrigation of the soil, the appropriation thereof is, in legal contemplation, made when the act evidencing the intent is performed. Of course, such initial act must be followed up with reasonable diligence, and the purpose must be consummated without unnecessary delay." Larimer Co. v. People, (Colo.) 9 Pac. Rep. 794; Lehi Co. v. Moyle, (Utah,) 9 Pac. Rep. 867. We think the appropriation of water as alleged was clearly established by both plaintiff and defendant. The judgment is affirmed. WRIGHT, C. J., concurs. (2 Idaho (Hasb.] 452) HAYWARD Vv. BOLTON et al. Appeal from district court, Bear Lake county; before Justice HAYS. BRODERICK, J. The same questions are involved in this case which were presented in the case of Innis v. Bolton, ante, 264, just decided by this court; and for the reasons 'given therein, and upon the authority of that case, the judgment of the court below in this case is hereby affirmed. HAYS, C. J., and BUCK, J., concur. (2 Idaho [Hasb.] 397) OREGON S. L. RY. Co. v. YEATES, Assessor. (Supreme Court of Idaho. February 20, 1888.) RAILROAD COMPANIES-TAXATION-MACHINE AND REPAIR SHOPS. Where machine and repair shops are situate upon lands other than the right of way, but are connected with the main line of the railroad by side track, held, that under section 1463, Rev. St., they should be assessed by the local assessor rather than by the territorial board of equalization. (Syllabus by the Court.) Appeal from district court, Alturas county; before Justice BRODERICK. |