Sidebilder
PDF
ePub

not. If, therefore, the deceased commenced the use of the water from the springs at a time when he had a right to appropriate the water, or any part thereof, and if he applied it to a beneficial or useful purpose, why was he not at the time of his death entitled to so much of the water of said springs as he had appropriated and used for such purpose? Counsel for respondent, as we understand them, do not assert the contrary, except to claim in a general way that the deceased never acquired any right to use the water or any part thereof. In view of the evidence, we are unable to see upon what this claim rests. If, as the court seemingly concluded, the defendant could acquire some right to the use of the water of the springs by merely intermittently and at long intervals driving his cattle to drink the water, why could not the deceased acquire a right to at least a portion of said water by making a daily use of it for a beneficial purpose for a portion of each year for a term of years? In our judgment the defendant's use of the water was too intermittent and uncertain either as to time or quantity to prevent the deceased from acquiring a right thereto, and, for the same reason, we think the cliam to the water by appellant by reason of the fact that the deceased on different occasions required the sheep men to pay him for the use of the water in watering their flocks is too uncertain a use to authorize a court to find and adjudicate that the appellant has any right to the water by reason of what the deceased did or claimed in that regard. The number of times that the deceased exacted pay from the sheep men was comparitively small at best, and did not occur in every year, or always while the deceased was on the land near the springs. Nor did he ever exact pay from cattle men, nor from all the sheep men, although it appears from the evidence that quite a number of them watered their cattle and sheep at the springs during a part of the time when the deceased stayed in his cabin. near the springs. It also appears from the evidence that neither the deceased nor his team and saddle horse were present at the springs or used the water as aforesaid, except during a portion only of each year commencing with March,

1901, and ending January 4, 1905, when the deceased died. Just what the exact time was does not appear, and is not found by the court, except the finding that the deceased used the water as aforesaid "a few months each year." Nor did the court find how much water in quantity, or what proportion of the springs the deceased used as aforesaid.

In view of all the facts and circumstances, we are of the opinion, therefore, that the appellant as administrator is entitled to a specific finding with respect to the quantity or proportion of the water from the springs that the deceased used for culinary purposes and to water his team and saddle horse, and the length of time that the water was used for those purposes each year from 1901 to 1905, and, when said quantity and time of use is ascertained, the appellant is entitled to a decree awarding him for the benefit of said estate the quantity of water so found for the time aforesaid. If it be found that the appellant has no right to use the water for the purposes aforesaid, or for any beneficial purpose, on the land surrounding the said springs, then he may, nevertheless, use the water in the quantity that it is found the deceased used it, and for the time that he used it, by diverting it to some other place if appellant can do so. (Smith v. Logan, supra; Santa Paula Waterworks v. Peralta, supra.) If appellant, however, has no right to use the water at or near the springs as the deceased used it, and if he will not divert and use it elsewhere or dispose of it to some one who will use the same, then appellant at some time in the future may be deemed to have abandoned the right to the use of the water the same as any one else would be deemed to have abandoned rights by nonuser.

From what has been said it follows that the district court. erred in its application of the law to the facts of this case. In view of the unsatisfactory state of the evidence upon the two questions, namely, the amount of water that the deceased, Patterson, used for culinary purposes and for his team and saddle horse, and the season or the length of time. he so used it during each year, we are unable either to direct

37 Utah-27

findings or to make any upon those questions. Since there must be findings upon these two questions before the case can be finally determined, nothing remains for us to do except to reverse the judgment, and to remand the cause for a new trial, with directions to the district court to proceed with the case in accordance with the views contained in this opinion. It is so ordered, appellant to recover costs.

STRAUP, C. J., and MCCARTY, J., concur.

STATE ex rel. NEWELL v. DISTRICT COURT IN AND FOR THIRD DISTRICT et al.

No. 2133. Decided April 27, 1910 (108 Pac. 1121).

1. RECEIVERS-INSOLVENCY-RECEIVERS-RIGHTS OF ACTION. A receiver of an insolvent corporation is authorized to intervene in an attachment suit against the corporation and file a motion to set aside an order of sale of the attached property. (Page 421.)

2. EXECUTION-INTERVENTION BY THIRD PERSON-REMEDY BY MOTION. The general rule that none but parties to original actions can move the court to recall or quash an execution is subject to an exception in favor of persons not parties who will necessarily be prejudiced by the enforcement of the writ, such as subsequent purchasers, lienholders, and execution or judgment creditors. (Page 422.)

3. RECEIVERS-CLAIMS AGAINST PROPERTY-LEAVE OF COURT TO SUE The court appointing a receiver may, on proper application, grant leave to a person interested in the property in the receiver's hands to segragate it from the general mass and to sell the portion so segregated, and apply the proceeds to the payment of a lien exist ing in favor of the appellant. (Page 423.)

4. EXECUTION-ORDER OF SALE-RECALL OF EXECUTION.

Where the

court makes a formal order for the sale of attached property, under Comp. Laws 1907, sec. 1414, providing for sale of property under a special landlord's lien, and section 3080 providing for a sale of attached property after the recovery of judgment, a subsequent order of the court recalling a special execution issued in pursuance of the order is a nullity and does not affect the order of sale, since such order of sale is in the nature of a judgment which cannot be set aside except by formal proceedings recognized by law for that purpose. (Page 425.)

5. CERTIORARI-REVIEW OF VOID ORDER-RECALL OF EXECUTION. Where the court in attachment proceedings makes a formal order of sale, in pursuance of which a special execution is issued, a subsequent order of the court recalling the execution, though void as beyond the power of the court, certiorari will lie to annul such subsequent order since the petitioner cannot be required to expose himself and the officer to proceedings for contempt for disregarding the court's order. (Page 427.)

Certiorari by the State, on the relation of Henry Newell, against the District Court for the Third Judicial District, Salt Lake County, and others to review an order of such court setting aside an order of sale in attachment proceedings.

ORDER ANNULLED.

Decided April 27, 1910.

M. E. Wilson for plaintiff.

Lawrence & Robertson, Stephens, Smith & Porter, Dean F. Brayton and Allen T. Sanford for defendants.

FRICK, J.

This proceeding was instituted in this court under its original jurisdiction to obtain a writ of certiorari, which was prayed for to enable this court to review a certain order made by the district court of Salt Lake County, by which said court quashed or set aside a previous order entered by said court. The latter order directed the sale of certain personal property held under a writ of attachment issued in favor of the petitioner, and which property was held for the purpose of satisfying a judgment obtained by him in said.

court.

in a

The facts briefly stated are: That on July 17, 1909, certain action then pending in the district court of Salt Lake County, wherein one Copeland was plaintiff and the Salt Lake Public Service Company, a corporation, and others were defendants, one W. B. Albertson was duly appointed receiver of, and took possession and retained possession of, the property and assets of said corporation for the purpose of winding up its affairs; that said corporation, as the tenant of the petitioner, became indebted to him in the sum of $1403.15 for rent; that, under our statute, sections 1407 to 1415, inclusive, Comp. Laws 1907, a lessor has a lien upon the property of the lessee for rent due and unpaid, which lien, under ordinary circumstances, is enforced by the commencement of an action, followed by an attachment by which the property of the lessee is seized and held pending the action and the entry of judgment therein; that on the 12th day of January, 1910, in an action duly commenced and pending in Salt Lake County, and in which an attachment had been duly issued, and certain property attached under the statute referred to, the petitioner, as lessor, obtained a judgment against the receiver of said corporation for the amount above stated; that before the bringing of said action the petitioner applied for and obtained leave from the district court aforesaid to bring the same against the receiver of said corporation, and obtained leave of said court to attach and take possession of certain property belonging to said corporation and in the possession of said receiver by virtue of said writ of attachment which was duly issued in said action; that after said property was surrendered by the receiver and seized under said writ of attachment, and after the judgment as aforesaid was obtained, said court ordered the attached property sold and the proceeds thereof to be applied to the satisfaction of said judgment to the extent of said proceeds; that after said order of sale had issued the defendants in this proceeding filed a motion in said district court to recall and quash said order of sale, or execution, as they call it, which motion was substantially based on the following grounds: That the movants appeared in the original

« ForrigeFortsett »