
    ROBERTS et al. v. GRIBBLE.
    No. 2395.
    Decided August 16, 1913
    (134 Pac. 1014).
    1. Waters and Wateb Courses — Actions—Sufficiency of Evidence. In an action to restrain defendant from interfering with certain subterranean waters beneath, bis land, evidence held to show that the waters in dispute were percolating waters. (Page 413.)
    2. Watebs and Wateb Courses — Percolating Waters — Diversion. Where waters percolated under defendant’s land from adjoining irrigated land, making his land swampy and marshy, and from defendant’s land percolated into the channel of a river, from which it was diverted by plaintiff for irrigation purposes, defendant had a right to drain his land by sinking, wells and to. use the water collected by means of such wells for the irrigation of his own land, although he thereby prevented it reaching the river. (Page 413.)
    Abpisal from District Court, Seventh District; Hon. J. E. Booth, Judge.
    Action by Elizabeth Eoberts and others against William H. Gribble.
    Judgment for defendant. Plaintiffs appeal.
    ApPIEMET).
    
      J. W. N. Whitecotton for appellants.
    
      A. N. Cherry and J. W. Cherry for respondent.
    STATEMENT OE PACTS.
    This is an action to restrain defendant from interfering with certain underflow or subterranean waters which pass beneath the surface of and through the defendant’s land' in Sanpete County, Utab, and to quiet tbe title of tbe waters in plaintiffs.
    Tbe court, among others, made tbe following findings of fact, wbicb are undisputed:
    “(2) That Sanpitcb Elver is a natural stream of water, arising in tbe upper part of Sanpete County, Utab, and in its natural state flows southerly and westerly through San-pete County and across tbe defendant’s said lands and south of plaintiffs’ said lands and into tbe Sevier Eiver. . .
    “(3) That tbe normal or usual flow of water in said river, except as hereinafter stated, is diverted and used by persons not parties hereto above tbe respective points of diversion of tbe parties to this action. That during tbe spring season, and until about tbe middle of tbe month of June of each year, a considerable quantity of water, commonly called ‘high water,’ usually flows in said river to tbe points of diversion of tbe parties to this action, and portions thereof are claimed, diverted, and used for irrigation purposes by tbe plaintiffs and tbe defendant upon their said lands. . . . (Tbe title or right to tbe use of tbe ‘high water5 is not involved in this action.)
    “(4) That previous to tbe year 1905 no water habitually flowed in said river to tbe respective points of diversion of tbe parties hereto, except tbe said ‘high water,’ and that up to that time said river was usually dry in tbe vicinity of tbe plaintiffs’ and defendant’s said lands after tbe said ‘high-water5 season was over as aforesaid. That about tbe year 1905, on account of tbe irrigation of tbe surrounding lands, a quantity of water began to seep and percolate and now seeps and percolates into tbe channel of said river, during tbe latter part of tbe summer of each year, at and below tbe defendant’s said lands and, when not interfered with, flows down said river to tbe point of diversion of tbe plaintiffs, where tbe same has been diverted and used by plaintiffs, for tbe necessary irrigation of their said lands, ever since tbe said year 1905.”
    Tbe court also made and filed tbe following findings of fact:
    
      “(5) That in the month of June, 1910, the defendant constructed a number of wells by driving perforated pipe into the earth a short distance south and away from the channel of sadd Sanpitch River and in a natural depression upon the lands of said defendant and constructed a ditch leading therefrom, wherby a quantity of water varying in amount, but not exceeding one cubic foot per second of time, was developed from the percolating waters of his said soil and the waste from the irrigation of his said lands, which said water ever since has been and now is conducted by said defendant to and upon his said lands for the necessary irrigation thereof. That the water does not flow from said wells or through said ditch of defendant except during and immediately following the irrigation of the defendants’ lands lying above.
    “(6) That the said waters developed and used by said defendant, as aforesaid, never reached said Sanpitch River by any known or defined channel or course previous to the development and use thereof by the said defendant as aforesaid.”
    As conclusions of law the court found:
    ' (1) That the waters developed and used by the defendant are percolating waters arising from his own lands, and (2) that the development and use thereof were and are no invasion or violation of any right of the plaintiffs. Judgment in conformity with the findings of fact and conclusions of law was rendered in favor of defendant. To reverse the judgment, plaintiffs prosecute this appeal.
    
      
       Garns v. Rollins, 41 Utah, 260, 125 Pac. 867.
    
   McCARTY, C. J.

(after stating the facts as above).

Appellants contend that the underground waters tapped by, and which flow from, respondent’s wells are waters that flow in a known and defined channel beneath the surface of the" river bed, and that these waters, when not diverted by the wells or otherwise interfered with, rise to the surface in the river channel below respondent’s lands and flow down to appellants’ dam and into their canal; that the water, therefore, is not subject to appropriation by respondent, and bence tbe court erred in finding on tbe issues, in favor of respondent. On tbe other band, respondent contends that tbe evidence clearly shows that tbe waters in question are waste waters that seep and percolate from lands above and in the vicinity of tbe land upon which tbe wells-are situated, and bence be has not only tbe legal right to drain bis land of these waters but also tbe right to divert and mate a beneficial use of them when thus collected.

Tbe evidence shows that:

(1) Sanpitcb River, as found by tbe court, flows across-respondent’s land upon which tbe flowing wells in question are located; (2) respondent purchased and went into possession of this land in tbe year 1900; (3) tbe channel of the-river across this tract of land is quite shallow; (4) originally tbe course of tbe stream through this land was tbe same as it is at present; (5) during tbe “high-water” period of each year tbe stream, at or near tbe point where it enters respondent’s land, overflowed to tbe south and in course of time-washed out and created a new channel which curved to tbe south and west, returning to and forming a junction with tbe old channel about eighty rods west of tbe point where it departed therefrom; (6) the river in its course around this curve or bend would, during high water, overflow and damage respondent’s land lying immediately south of the bend or curve; (7) in the year 1900 respondent straightened the channel aud turned the stream into its original channel, causing it to flow approximately due west across his land as it had done in former years; (8) he did this to protect his land' lying south of the bend from being flooded and damaged by the high water; (9) after the course of the stream was thus-changed the land within the bend (between the two channels) grew up to grass and other vegetation, and respondent cut hay therefrom for several years thereafter.

It is conceded that the high-water period in that part of the state usually extends from early springtime to about the 15th day of June. Counsel for appellants in his brief, referring to the stream during its normal flow, says:

“The evidence . . . shows without contradiction that, at a point from a mile and a half or two miles above the defendant’s land, all the waters of Sanpitch River are diverted from the main channel and are conveyed through canals for the irrigation of the lands lying south and southwest from the town of Gunnison, including lands of the defendant, and that said irrigated lands bordered upon the main channel of the Sanpitch River.”

The court found, and the finding is neither disputed nor •complained of, that in the year 1905, on account of the irrigation of the lands referred to by counsel, seepage water appeared on defendant’s lands, and that this water flowed down the river channel and, when not interfered with, was diverted by appellants. And the undisputed evidence also shows that, because of the increased irrigation - of the lands mentioned in recent years, much, of defendant’s land, and especially that portion lying within and immediately south and southwest ■of the bend of the river, became swampy and marshy and unfit for cultivation. On this point the defendant testified in part as follows:

“In 1901 the water appeared and destroyed our crops. In 1908- and 1909 we didn’t put any in at all. The water was ■all over it (the land) shoe-top deep. During these years water appeared in the channel of the river all along where I drove these wells. . . . The wells were driven by driving a pipe in the ground from nine to twenty-five feet. . . . The wells are along the bend that used to be the channel of this river. It (the water) has run through every year in the channel of the creek, commencing three years ago.”

Another witness testified:

“Previous to three or four years ago there never used to be any water running in the bed of Sanpitch River after the high-water season.”

Reuben Christensen, one of the plaintiffs, testified regarding the amount of seepage water in the river channel prior to the year 1905 as follows:

“The water for our land was scarce after the high water in Sanpitch River, and lots of years we did not get any.”

N. C. Sorensen, a witness for respondent, referring to the river channel at and above plaintiffs’ dam, testified:

“I have crossed the river (channel) . . . hundreds of times during the summer and fall. I have seen the water flowing there, but not in the dry seasons — not in the low-water season. I mean the dry years and when high water is over. It would be dry practically every year up to the last five or six years.”

Regarding the effect that the driving of the wells had on the seepage water that submerged his land, respondent testified as follows, and this testimony is not disputed:

“It was perfectly dry in fifteen days after I drove the pipe; that is, the water (disappeared) that was standing on my fields.”

The evidence shows that water flows from the wells during the irrigation seasons only. When the crops are matured and the farmers, including respondent, cease irrigating their farms for the season, the water stops flowing from the wells. On this point respondent testified, and his testimony is not. disputed:

“This water seems to fluctuate with the irrigation above. When we irrigate above, the wells flow a good big flow. The first time we watered this spring it was about six feet to tim water in these wells, and the first time it raised a little over two feet, and the next time about the same, and the third time it came to the top and began to flow, and it increased in the creek gradually all over, and the wells flow a little now (August 4, 1911). I have not been able to use it this year because there is not enough to run in the ditch at all. It is a dryer season and not enough water coming up in the land.”

We think the evidence both for appellants and respondent tends to show that the waters in dispute are seepage and percolating waters. These waters rose in such quantities on i*espondent’s land that it became submerged and was rendered unfit for the raising of hay and other farm products. The respondent undoubtedly had a right to drain his land of the water and put it in a condition for raising crops. Whether be did. this by sinking wells or by digging drain ditebes was of no concern to appellants. Tbe water tbns developed or collected being waste water which seeps and percolates into respondent’s land from adjoining lands, be bad tbe legal right to make whatever beneficial use of it be deemed proper, and be did not invade any right of appellant’s by so doing. We think tbe right to tbe use of tbe water in this case comes squarely within tbe rule announced in tbe case of Garns v. Rollins, 41 Utah, 260, 125 Pac. 867, recently decided by this court.

Tbe judgment is affirmed, with costs to respondent.

STRAUP and PRICK, JJ., concur.  