N. M. Long & Co. v. Cannon-Papanikolas Construction Co.

WADE, Justice

(dissenting).

If the evidence would compel a finding that defendants’ drains had the effect of depleting plaintiffs’ water supply, as I think it would, then in my opinion plaintiffs were each entitled to damages therefor. I will first consider the question of whether plaintiffs are entitled to damages after *313a brief statement of some facts which should be kept in mind during this discussion. Then I will discuss whether the evidence would compel a finding that defendants’ drains depleted plaintiffs’ water supply.

Each of the three plaintiffs established an adjudicated right by appropriation and beneficial use of the waters which accumulated in the Mower Pond and the Long Ditch. This water was diverted into this pond and ditch by artificial drains and ditches of natural springs and swampy grounds of higher elevation to the southeast. This water had been beneficially used by the plaintiffs and their predecessors since 1886 and 1883 and earlier according from the trial court’s findings. The trial court also found that the water from these springs and swampy grounds was “sustained and supplied from water escaping by seepage from Big Cottonwood Creek and seepage of water resulting from irrigation of" high elevation grounds. The Mower Pond and Long Ditch are both on grounds of higher elevation than the defendants’ subdivisions, which are north of the pond and northeast of the Long Ditch. The defendants’ drains are placed underground in its subdivisions. They do not intercept the water before it reaches the Mower Pond, the Long Ditch or the springs and swamps which feed them. So the only way that these drains could decrease plaintiffs’ water would be by lowering the water table or level of the water, or static head pressure under the Mower Pond and the Long Ditch, and the springs and swampy ground from which the water supply was drained by draining the water from below through the porous sand and gravel formation under the pond, ditch, springs and swampy ground so that this water would flow or seep directly underground to defendants’ drains without coming to the surface at such pond, ditch and drains as it did before the drains were put in.

This court has uniformly protected an appropriation of water against the acts of another which had the effect of lowering the water table or static head pressure of underground waters, or the level of the flow of a stream, or the waters of a lake at the point of diversion and thereby interfering with the right of such appropriators to the use of an established water right. This is true whether the water was brought to the surface by means of artesian wells,1 *314by natural or developed springs and seepage waters,2 or by lowering the level of a lake.3

The above decisions in a sense involved competing claims to the beneficial use of water from the same source. However, in many of the cases there was enough water to satisfy both claims, but the drawing of the water of the subsequent claimant from the same source as the prior claimant lowered the static head pressure so that pumping was necessary, which raised the question of who should bear the cost of pumping. In the case of Kano v. Arcon Corporation,4 the defendants, the same as in this case, were not seeking to appropriate or beneficially use the water which they drained out of their land, thereby making unavailable to plaintiffs the use of the water by gravity flow which they had previously appropriated to a beneficial use. The defendants in that case, the same as in this one, placed underground drains in their own swampy ground to drain the water out and lower the water table or static head pressure and thereby make their own ground suitable for subdividing and building homes thereon. Incidentally, in both cases the static head pressure of the water was lowered so that the water which plaintiffs had previously appropriated to a beneficial use was made unavailable to plaintiffs without pumping. The prevailing opinion attempts-to distinguish this case from Wrathall v. Johnson and Justesen v. Olsen,5 because defendants are not seeking to appropriate water which plaintiffs have established the right to use, but are merely seeking to make their own land suitable for use as building lots. No attempt, however, is made to distinguish the Kano case or overrule it, and. no mention is made thereof.

Generally the facts are similar in the two cases, but there are some differences. In the Kano case the defendants directly destroyed ponds and ditches on defendants’ land through which plaintiffs had a right of way, and had conveyed their water from a natural stream and swampy ground to their own farm. Thus obviously defendants’ actions in destroying such ponds and ditches deprived plaintiffs of their water supply by gravity flow. In this case defendants did not directly interfere with plaintiffs’ ponds, ditches or drainage system, but by drains in their own lands below *315plaintiffs’ lands they lowered the static “head pressure so that the water which would have come to the surface and filled plaintiffs’ pond and ditches was drawn underground through plaintiffs’ land into defendants’ drains. I do not claim that defendants were not entitled to improve their property as they did, but I think they should be required to pay plaintiffs damages for depriving them of their water rights. The only distinction between this case and the Kano case is that there the defendants intentionally destroyed plaintiffs’ ditches and ponds and drained the water table down to a lower level, whereas here it is not so evident that plaintiffs’ water rights would be destroyed by the drainage of defendants’ lands. I do not agree that this slight difference is sufficient to justify us in requiring the plaintiffs in the Kano case to pay defendants’ damages but refusing to do the same in this case. Here, as in the Kano case, the defendants drained their land in order to make it usable for building purposes. The only difference in the two cases is that here the defendants were not so sure that such drainage would destroy the plaintiffs’ water rights. Such fine distinction does not seem to me to justify the difference.

The prevailing opinion cites only the Restatement of the Law of Torts, Vol. IV, Secs. 822 to 840 and 849 in support of its conclusions. That authority repeatedly points out, in the sections cited6 and other sections under the same topic,7 it is considering only riparian rights, and no attempt is made to deal with the law of prior appropriation which prevails in this state.8

I think the evidence requires a finding that defendants’ drains depleted plaintiffs’ water supply and that a contrary finding would be unreasonable. The trial court made no direct finding on this question. It did find that there “had been a decrease in the amount of seepage waters which came to the surface * * * but not by any wrongful act of defendants.”

Whether defendants’ drains depleted plaintiffs’ water supply, since it all happened underground was not a subject for direct eye witness testimony, but is largely a question for expert opinion. Plaintiffs’ expert, Mr. Ward, is a ground water engineer of many years’ experience with this and similar problems. He has lived in this neighborhood for many years, has worked in the State Engineer’s office and for Salt Lake City, and in both capacities has investigated this situation. He has kept records on the water flow and made investigations of the water table in the neighborhood of plaintiffs’ pond and ditches, has *316driven perforated pipes into the soil, determined the nature of the underground strata of the country, and made charts of the results of his investigations. Ne gave it as his firm and positive opinion, claiming that his investigations demonstrated that the defendants’ drains did lower the water table or static head pressure of the grounds where their water was diverted into their systems and depleted their water supply.

There is no evidence to the contrary. Mr. Papanikolas, a partner in the Cannon-Papanilcolas partnership, suggested that the sewer which was installed in Highland Drive about the same time as defendants’ drains, was the cause of plaintiffs’ water supply depletions. Mr. Heath, a civil engineer and land surveyor with some experience in drainage, installed defendants’ drains, but he neither qualified to nor expressed any opinion contrary to Ward’s opinion.

On rebuttal Ward testified that the Highland Drive sewer was at least a thousand feet east of the Mower Pond, the nearest part of plaintiffs’ system to that sewer; that the sewer is IS feet higher in elevation than the pond, and that at one point plaintiffs’ ditch is as near as SO feet to defendants’ sewer. He testified that the sewer is a sealed pipe so that water from the outside cannot enter it. The sewer pipes were laid on a sand and gravel base with large concrete manholes every few hundred feet, with the bottom a few feet lower than the sewer pipes, and the concrete was poured on the native ground, thus preventing water on the outside of the sewer from seeping through the gravel base beyond the manholes. He gave it as his opinion that only a small trickle of water could escape along the outside of the sewer, and that in view of the higher elevation of the sewer than plaintiffs’ water system, the long distance they are apart, the sealed sewer pipes which prevented the water from entering from the outside, and the manholes every few hundred feet with concrete poured on the native soil under the sewer, the waters which feed plaintiffs’ system could not have escaped along this sewer. The record contains no substantial evidence to the contrary. I think it would be unreasonable to find from this evidence that defendants’ drains didn’t deplete plaintiffs’ water supply.

. Horne v. Utah Oil Refining Co., 1921, 59 Utah 279, 202 P. 815, 31 A.L.R. 883; Glover v. Utah Oil Refining Co., 1923, 62 Utah 174, 218 P. 955, 31 A.L.R. 900; Wrathall v. Johnson, 1935, 86 Utah 50, 40 P.2d 755; Justesen v. Olsen, 1935, 86 Utah 158, 40 P.2d 802; Hanson v. Salt Lake City, 1949, 115 Utah 404, 205 P.2d 255; Little Cottonwood Water Co. v. Sandy City, 1953, 123 Utah 242, 258 P.2d 440.

. Sullivan v. Northern Spy Min. Co., 1895, 11 Utah 438, 40 P. 709, 30 L.R.A. 186; Herriman Irr. Co. v. Keel, 1902, 25 Utah 96, 69 P. 719; Bastian v. Nebeker, 1917, 49 Utah 390, 163 P. 1092; Peterson v. Lund, 1920, 57 Utah 162, 193 P. 1087; Peterson v. Wood, 1928, 71 Utah 77, 262 P. 828.

. Salt Lake City v. Gardner, 1911, 39 Utah 30, 114 P. 147.

. Kano v. Arcon Corporation, 1958, 7 Utah 2d 431, 326 P.2d 719.

. See note 1 above.

. See Restatement of the Law of Torts, Vol. IV; this is pointed out in the comment to 849, pp. 340 and 341.

. See Restatement, Sec. 843, where “Riparian Lands” are defined and discussed.

. See Restatement, Sec. 849, end of paragraph at top of page 341.