
    WHITMORE v. UTAH FUEL CO. et al.
    No. 1983.
    Decided April 28, 1913
    (131 Pac. 907).
    Waters and Water Courses — Diversion—Damages. An appropriator and owner of all tlie water of a creek and of springs which fed the creek, who had conveyed it to his home ranch by a main and a branch pipe line, where it was used for irrigation of a garden and orchard, and for culinary, domestic, and stock raising purposes, though having no market value because there were no sales by reason of its scarcity, in his action for a wrongful diversion was entitled to pecuniary damages measured upon a consideration of the different uses to which he had applied it, not including the value of the pipe line, rendered useless by the diversion, its value being represented in the enhanced value of the water by being carried therein in a continuous flow from the springs to the ranch, unimpaired in quantity or quality.
    Appeal from District Court, Seveutb District; Hon. Ferdinand Eridcson, Judge.
    Action by George O. Wbitmore against Utab Fuel Company and tbe Eio Grande Western Eailway Company.
    Judgment for plaintiff. Plaintiff appeals.
    EeMANDED, WITH DIRECTIONS TO VACATE THE JUDGMENT, AND TO REOPEN AND RETRY THE CASE ON THE ISSUE OP DAM- . AGES.
    
      
      A. B. Barnes, and E. V. Higgins for appellant.
    
      VanCott, Allison & Biter, M. P. Braffet, and E. A. Wedgwood for respondents.
   McCARTY, C. J.

Respondents have filed a petition for a rebearing. We have given tbe questions presented careful consideration, and are of tbe opinion tbat tbe decision heretofore filed in tbe cause on this appeal should in some particulars be modified. In view of tbe fact tbat counsel, both for appellant and respondents, have filed briefs in which they have ably and elaborately discussed tbe questions presented, we have decided to make tbe necessary changes in tbe opinion without reopening tbe case for oral argument. Tbe cause will be ruled and determined by this opinion only.

Tbe complaint contains two causes of action. Tbe case has been tried twice, and this is tbe second appeal taken by tbe plaintiff. Tbe first trial resulted in favor of defendants, and a decree was entered dismissing plaintiff’s complaint. This decree was appealed from, and tbe decision of tbe lower court was affirmed as to tbe second cause of action, but was reversed and remanded as to tbe first cause of action. (Whitmore v. Fuel Co., 26 Utah, 488, 73 Pac. 764.) In tbe opinion remanding tbe cause this court said:

“Plaintiff is entitled to recover from respondents whatever damages the evidence shows he has sustained which are the proximate and direct result of the diversion of the waters of the lower group of springs above referred to. It appears from the record that the source of supply of water for Grassy Trail Creek has been destroyed, and that it would be impossible for the defendants to return the water to plaintiff; hence he is entitled to recover whatever the evidence shows to be the value thereof.”

The cause was remanded to tbe district court, with directions to enter judgment in favor of plaintiff for tbe amount of damages be bad sustained by tbe diversion of tbe water. Proviso was made in tbe order for tbe reopening of tbe case, and the introduction by the parties of further evidence on this issue in the event that the lower court was unable to determine the amount of damages so sustained by the plaintiff from the evidence then before it. Pursuant to such order, the cause was reopened as to the first cause of action, and both plaintiff and defendants were permitted to introduce additional testimony. When the cause was called for the taking of further evidence, the plaintiff was permitted to file an amended complaint. In the complaint as amended plaintiff, so far as material here, alleges: That in the year 1884 he had completed the diversion and appropriation of all of the water of Grassy Trail Creek in Sun-nyside Canyon, including all springs tributary to said creek, and was the owner thereof; that said water was appropriated, and used “for irrigation, culinary, domestic and stock raising purposes;” that prior to 1884 he had acquired title to 320 acres of land which lies along the bed of the canyon through which said stream runs; that the water so diverted and appropriated was used by plaintiff to irrigate about 200 acres of the land mentioned, and for domestic, culinary, and .and stock raising purposes; that in August, 1899, he constructed a six-inch pipe line three miles in length capable of carrying all the water of said creek, and that he constructed a branch pipe line 1400 feet in length from the main line, and thereby obtained water from springs that fed the original Grassy Trail Creek; that in the year 1899 the Utah Fuel Company began prospecting for coal upon land, to which it claimed title, adjoining said Grassy Trail Creek and later opened extensive coal mines therein and ■established a village at Sunnyside of .1500 people thereon ; that said village created a large demand for water, and that said company by running tunnels and making excavations underneath said branch pipe line prevented the water of said springs from entering into the pipe line, and forced the water to run out of its mine at a level below the pipe line, so that the same could never run therein or reach the lands and premises of plaintiff; that said company also dug a well higher up the stream of Grassy Trail Creek so as to obtain the water of the springs which were running out of the branch pipe line, and deprived the plaintiff of the use thereof; that by means of the well and the diversion of the water of said creek plaintiff is without water to irrigate his garden, his lucerne, and other vegetables, or to use for culinary, domestic, or stock raising purposes; “that the country adjacent to said lands and said) creek for many miles is extremely arid, and that there are no streams from the mountains or any source of supply of water other than said Grassy Trail Creek within many miles thereof, except Price River, which is at an elevation much less than the lands of this plaintiff and of said Grassy Trail Creek; that this plaintiff at the time of such appropriation was, and for many years had been, engaged in stock raising, and that he has been so engaged ever since said appropriation, and still is'; that prior to 1899 this plaintiff had ranged his cattle in the valleys and on the mountains within range distance from his said lands; . . . that the said lands hereinbefore described were used as a home ranch for the conduct of his said stock raising business;” that prior to the date last mentioned he had erected large and expensive corrals for the preservation of his stock and had built a dwelling house and bunk houses for the accommodation of his employees; that the value of said farm with the water rights appurtenant thereto, together with the enterprises connected therewith and dependent thereon, is at least $200,000; that the defendants by means of the well aforesaid and' the other acts of diversion hereinbefore mentioned have destroyed the water rights of the plaintiff, rendered his branch pipe line valueless, and ruined his farm, to his damage in the sum of $20,000; that, if said defendants are permitted to divert said waters and to continue the said injury, plaintiff will be damaged thereby to the extent of $150,000.

Plaintiff prayed “judgment that the court award proper compensation due to him for diversion of the water heretofore made or that shall be made prior to the time that a decree in this case shall enter judgment therefor in favor of the plaintiff, and in ease it shall be found that said water, so diverted as hereinbefore alleged, cannot be returned to the pipe line of this plaintiff, and that this plaintiff is permanently deprived thereof by the wrongful acts of the said defendants, or either of them, that then and in that case the court award proper compensation to this plaintiff from the said defendants for the wrongs., and injuries complained of, and render judgment against the said defendants, and each of them, for the damages caused thereby, as hereinbefore set out.”

Defendants, in their answer, admitted the construction by plaintiff of the pipe lines mentioned, admitted that they and their predecessors in interest had opened extensive coal mines near Grassy Trail Creek, and that a considerable number of persons (employees of the defendants) live near said mines, but denied that they diverted or attempted to divert water from said creek in any way or for any purpose, denied that plaintiff’s pipe line took water from springs that he had appropriated, and denied all other allegations of the complaint upon which plaintiff relies for a recovery. For a detailed statement of the facts out of which this controversy arose, we refer to the former opinion of this court in the case, reported in 26 Utah, 488, 73 Pac. 764.

Much evidence bearing on the amount of dalnages sustained by plaintiff because of the diversion of the water of Grassy Trail Creek ■ by the defendants was introduced by both plaintiff and defendants. The court found that plaintiff had been damaged in the sum of $3475, and rendered judgment in his favor for that amount. The transcripts of the evidence taken at both hearings or trials are incorporated in and form a part of the bill of exceptions on this appeal.

Appellant in his assignment of errors assails the ruling of the court rejecting certain evidence offered by him on the question of damages, and in admitting certain evidence offered by defendants on that issue; and also challenges the findings of the court regarding the amount of damages suffered.

The findings on the question of damages, so far as material here, are as follows:

“(1) Tbe defendants by tbe acts set forth in tbe original findings of fact (referring to tbe findings of fact made by tbe court on tbe first trial) . . . bave diverted from tbe lower groupi of springs described in tbe pleadings herein a quantity of water equivalent to one-tbird of a cubic foot per second of time; that tbe said quantity of water was and is capable of irrigating twenty-five acres of plaintiff’s land; . . that tbe value of said water so diverted by defendants is $1875.
“(2) That prior to tbe diversion of tbe said water by tbe defendants tbe plaintiff bad constructed a pipe line together with laterals for tbe purpose of conveying tbe said water to bis land; . . . that by reason of tbe diversion of said water tbe said pipe line and laterals bave been and are rendered entirely valueless; that tbe value of tbe pipe line and laterals was and is $1600.”

Counsel for appellant earnestly contend that tbe finding of fact wherein tbe court bolds that tbe quantity of water diverted by defendants from Grassy Trail Creek was equivalent to one-third of a cubic foot per second of time is not only unsupported by, but is contrary to, tbe evidence. Tbe contention made is that the court, under tbe evidence, should bave found that defendants diverted three-fourths of a second foot. Tbe record in this case is voluminous. Tbe testimony alone covers over 1500 ordinary pages of typewriting. While we shall make a few brief quotations from tbe testimony to clearly illustrate tbe questions involved, we shall not attempt to set out tbe evidence either in detail or in condensed form. We do not deem an extended' statement of tbe evidence necessary to a clear understanding of tbe question presented. Appellant testified, but be is tbe only witness who so testified, that tbe volume of water diverted by respondents from Grassy Trail Creek was from three-fourths to one second foot. Tbe evidence, without conflict, shows that tbe carrying capacity of tbe branch pipe line through which tbe water in question flowed to appellant’s ranch before tbe diversion complained of took place was .343 of a second foot, which is a trifle only in excess of one-third of a second foot. Independent, however, of the undisputed fact of the limited capacity of the pipe line, the great weight of the evidence tends to show that the amount of water diverted by respondents did not exceed the amount found by the court, and much evidence introduced by appellant tends to support the finding made by the court. Therefore this finding, in so far as it relates to the quantity or volume of the water diverted by respondents, must be upheld. In arriving at the amount of damages appellant is entitled to recover for the water diverted, the court first found —and there is evidence to support the finding — that the water diverted by respondents was capable of irrigating twenty-five acres of appellant’s land, and then evidently adopted as the measure of damages the difference between the value of twenty-five acres of appellant’s land with sufficient water to irrigate it and the value of the land without the water. And there is evidence in the record tending to show that the difference between the value of the land with and without water is seventy-five dollars per acre. In other words, damages awarded appellant for the loss of water was a sum which the court found to be equivalent to the depreciation in value of twenty-five acres of irrigated land by having the water taken permanently therefrom. The court in ruling on an objection interposed by respondents to evidence offered for the purpose of showing the value of water to appellant for any and all purposes announced the rule by which the amount of damage suffered by appellant should be determined as follows:

“I can’t think of any better theory or any better way of determining the damage sustained by plaintiff here than to find out what that land was actually worth at the time when he was deprived of this water, and then what it was worth after being deprived of that water.” The cause was tried and determined upon the theory thus announced by the court.

The record shows that appellant was engaged in the business of raising cattle and horses, and that the farm or ranch in question was maintained and worked by him in connection with and auxiliary or subsidiary to his principal and per manent business of raising live stock. Appellant ranged on an average of 4000 bead of cattle and from 400 to 500 borses upon tbe public domain in tbe vicinity of tbe ranch, and within a radius of from-eight to twenty miles thereof. He bad about 200 acres of land inclosed by fence. Besides maintaining an orchard and garden, appellant raised large quantities of bay, grain, and other farm products on this land. Tbe use made of tbe ranch and tbe crops raised thereon is well illustrated by appellant, who testified on that point as follows:

“I used as tbe center or home ranch for conducting that business (stock raising) tbe farm at Sunnyside where this water (diverted by respondents) was applied. ... I ■employed from six to nine men on that ranch and on tbe other ranch (summer ranch) taking care of the cattle. The men working on the other ranch lived on the farm at Sun-nyside after the cattle came out of the hills in the fall. I also kept some stock around the house and premises on the Sunnyside ranch. I would winter there at the ranch at Sunnyside . . . cattle of all kinds and a, great number of calves and thin cows and heifers and saddle horses, etc. The entire herd of my stock ranged in that vicinity when winter set in. The Durhams, thoroughbreds, and saddle horses would always come when the cold weather set in. The calves and thin cows- we would gather and drive in, and we kept them there during the winter. We also kept at the ranch from fifteen to twenty-five work horses, saddle horses, and stallions. We had to keep them up and feed them at the ranch all the time. . . . All the produce of the farm was used in feeding the stock and men. ... In the winter we had only the water from the springs (the water in question). We had none from the canyon.”

Prior to the alleged unlawful acts of respondents there was a continuous flow of pure potable water from the lower group of springs onto the ranch. This water was used by appellant for watering stock, culinary, and other domestic purposes, and during the irrigating season of each and every year was also used on the ranch for irrigating an orchard, garden, and farm products in general. Since tbe diversion of the water by respondents, appellant, in order to supply his ranch with water for wartering stock, culinary, and other domestic purposes, has been and is compelled to pump water from a well into the main pipe line through which it is carried to his ranch. When the pump is not running, he is compelled to haul water for culinary and other domestic purposes from what is known as the Icelander Spring, which is situated over a hill and about one-half mile from his house and corrals. It will thus be observed that the water in question is valuable to appellant for purposes other than irrigation. The court therefore erred in restricting the measure of damages to the value of the water for that purpose only.

It appears that the water has no fixed market value. Upon this point appellant testified in part as follows:

“I know the conditions and demands for water up there. There have been no sales, but there is no other water out there, nor none come-at-able. It doesn’t have a fixed market value in that canyon.”

Counsel for appellant in their brief say: “This water . . . could not possibly have had a fixed market value.” Respondents concede this to be the case. The record also shows that appellant cannot from any source obtain an adequate supply of water to replace the water diverted by respondents.

As we have pointed out, appellant in his complaint specifies the different uses made of the water in question on his ranch and the damages caused by its diversion as follows: “And thereby the defendants have diverted the water of plaintiff in the creek, and the said plaintiff is deprived thereof, . . . and said plaintiff is without water to water his garden, his lucerne and other vegetables, or to use the same for culinary, domestic, or stock raising purposes,- . . . that the defendants . . . have destroyed the water rights of said plaintiff and ruined his farm. . . . That the value of the said farm, together with the enterprises connected therewith and dependent thereon, is $200,-000, . . . and that if tbe defendant is permitted to divert tbe said water and to continue tbe said injury tbe plaintiff will be injured thereby to tbe extent of $150,000.”

Tbe evidence, without conflict, shows that tbe water was in fact used by appellant for tbe purposes alleged in- bis' complaint. Tbe court, in determining tbe amount of damage sustained by appellant because of tbe diversion of water by respondents, should have taken into consideration tbe different uses appellant made of tbe water on bis ranch. This tbe court did not do, but, as hereinbefore stated, tbe court adopted as tbe measure of damages tbe difference in. value of twenty-five acres of land with and without water. In their petition for a rehearing counsel for respondents with much earnestness contend that tbe pipe line (now useless as a conduit of water because of tbe diversion) is not a proper element of damages. While we, in effect, held in tbe first opinion announced and filed on this appeal that tbe pipe line, in view of tbe fact that it was rendered useless as a means of carrying water by tbe wrongful acts of respondents, is a proper element of damages, upon further reflection we are forced to tbe conclusion that appellant-is not entitled to recover for tbe pipe line. Tbe value of tbe pipe line is represented in tbe enhanced value of tbe water by being carried therein in a continuous and uninterrupted flow from tbe springs to tbe ranch undiminished in quantity and unimpaired in quality.

Numerous errors are assigned by appellant relating to tbe rejection of evidence offered by him on tbe question of damages, but we do not think, in view of what we have said, that tbe questions presented by these assignments will again arise; hence, we do not deem it necessary to discuss them.

Tbe cause is remanded, with directions to tbe trial court to modify its finding of fact No. 1 by striking that portion of it which reads as follows: “That tbe value of said water is $1875” — and to set aside tbe other findings of fact made and filed in tbe case; and to vacate tbe judgment, and to reopen tbe case for tbe taking of evidence on tbe question of damages, and to retry the case on that issue only in accordance with the views herein expressed. Cost of this appeal to he taxed against respondents.

FEIGN, J.

I concur. I think the appellant is entitled to recover the pecuniary value of the water of which respondents deprived him. That value is to be ascertained after considering the uses to which appellant applied the water, and whatever the money value of such uses was is, I think, the measure of damages. The fact that appellant used the water during certain seasons of the year for .irrigation is one element, the fact that he used it during other seasons of the year to water his live stock is another element, and the fact that he also used it for other purposes is still another element. The money value of all these elements combined constitutes the amount appellant should receive. In this case it appears that the interference with appellant’s source of water supply was caused by the respondents in the pursuit of some lawful enterprise. Under such circumstances neither punitive nor mere speculative damages should be allowed, but appellant’s recovery should be strictly limited to the actual loss or damage he has sustained by reason of being deprived of the use of the water. Of course, if ap^ pellant can from some other source obtain the amount of water of which he was deprived for a sum less than the value thereof as aforesaid, he should be limited in his recovery to the cost of obtaining the water from some other source. Again, if the cost of obtaining the water from some other source is in excess of its value when applied to the purposes I have mentioned above, the appellant should nevertheless be limited to the value of the water, and not to the cost of obtaining the same from some other source. The primary object in view should be to allow appellant such a sum as will compensate him for his loss. No more; no less.

STEAUP, J.

I concur in the judgment granting a new trial on the issue of damages. It, in effect, is conceded that the record shows the plaintiff to be the owner in and to the use of at least one-third of a second foot of water, or a quantity, as found, sufficient to irrigate twenty-five acres of land. The plaintiff had appropriated and acquired the water, and by means of a pipe line had conveyed it from springs to his land where he used it for irrigation, watering live stock, and for culinary purposes. The defendants wrongfully appropriated and diverted the waters at the springs, and converted them to their own use. It is conceded that the pipe line has no value except to carry the water from the springs to plaintiff’s land. By the wrongful acts of the defendants the water cannot be returned to flow in the pipe line, and hence the plaintiff is permanently deprived of the water, and his pipe line is rendered wholly valueless. Now, what is the measure of damages? The trial court held the difference between the value of plaintiff’s land with and without the water found to be $1875; and the value of the pipe line found to be $1600. I, too, think the court too much restricted the measure. But I think my Associates also too much restrict it. The water here is treated as personal property and the measure of damages as in an action of conversion, not as trespass to realty. What, then, is the measure ? The loss and injury sustained by the plaintiff as the direct and proximate cause of the conversion. That ordinarily on conversion is the market value of the property converted. But here it is said and conceded that there was no market value. This, because of a scarcity of water in the vicinity, no water was bought and sold on the market; the plaintiff’s water being about all the water there was for some miles around in an arid and mountainous country. He nevertheless is entitled to be made whole for the loss and injury sustained by him directly attributable to the defendants’ wrongful acts. In ascertaining this it is proper to consider the use or uses the plaintiff had made of the water, but it should not be restricted alone to that. I think it also proper to consider whatever beneficial use the plaintiff could have made of the water and every purpose for which it could have been used, not some mere speculative or conjectural use or purpose, but one of reasonable certainty and practicability. That is, the plaintiff should be at liberty to show, if he can, any reasonable, practical, and beneficial use which naturally and ordinarily could have been made of the water. The water was his, and he had the right to use it, not only for the purposes for which he had used it, but also for other beneficial purposes for which it could have been used. It was just as valuable and beneficial to him to use it to supply the inhabitants of Sunnyside with water as it was to the defendants to take it and use it for that purpose. So in estimating the value of the water I think the plaintiff should be permitted to show, not only the uses which he had made of the water, but also the uses which naturally and ordinarily could have been made of it.

Now, as to the pipe line. The wrongful acts of the defendants in taking the water and permanently depriving the plaintiff of it not only as a natural and proximate cause, but as an inevitable result, wholly destroyed the pipe line and rendered it useless and valueless. There is no doubt of that. The same wrongful acts of the defendants in converting the water in legal effect also constituted a conversion of the pipe line. Such loss and injury to the plaintiff is just as direct and proximate and just as great as though the defendants had torn up the pipe line and had either used it or had thrown it away. I see no reason why the plaintiff should not be compensated for such loss and injury as measured by the reasonable value of the pipe line at the time of the conversion.  