SHAWN E.

DRANEY (4026)
SCOTT H. MARTIN (7750)
DANI CEPERNICH (14051)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Post Office Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000
e-mail: sed@scmlaw.com
shm@scmlaw.com
dnc@scmlaw.com
Attorneys for Salt Lake City Corporation and
Metropolitan Water District of Salt Lake & Sandy
______________________________________________________________________________

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
______________________________________________________________________________
)
SALT LAKE CITY CORPORATION, a )
Utah municipality, and ) SALT LAKE CITY’S MOTION FOR
METROPOLITAN WATER DISTRICT ) PARTIAL SUMMARY JUDGMENT RE:
OF SALT LAKE & SANDY, a political ) 1934 AGREEMENT
subdivision of the State of Utah, )
)
Plaintiffs, ) Case No. 140900915
)
vs. ) Judge Andrew Stone
)
MARK C. HAIK and THE PEARL ) ORAL ARGUMENT REQUESTED
RATY TRUST, PEARL B. RATY as )
Trustee, )
)
Defendants. )
)

RELIEF REQUESTED

Plaintiff Salt Lake City Corporation (SLC) requests that the Court grant summary

judgment in its favor on its claim for declaratory relief regarding the effect of the 1934

Agreement. Specifically, SLC requests that the Court issue a declaration that, to the extent
Defendants Mark Haik and the Pearl Raty Trust (the Trust) seek to return their water rights

derived from water right number (WRN) 57-7800 to a surface right from Little Cottonwood

Creek, SLC owns all of the winter water Defendants may have acquired from WRN 57-7800

except for the appropriate proportion of 7,500 gallons per day (GPD). Defendants are judicially

estopped from denying SLC’s rights and interests under the 1934 Agreement. Even if they were

not, the 1934 Agreement is unambiguous and enforceable on its own terms.

INTRODUCTION

The terms of the 1934 Agreement are not in dispute. In prior litigation among the same

parties over the same rights, Defendants previously acknowledged the Agreement and SLC’s

rights under it. This Motion seeks only to confirm this.

The 1934 Agreement is a conveyance by the five Despain families to SLC of all the

winter Little Cottonwood Creek water available under the South Despain award minus 7,500

GPD. The 7,500 GPD is to be delivered off the Murray Penstock into the Despain area pipe

system near the mouth of the Canyon to the five contracting families. Defendants trace their

alleged water right to only one of these families (George Despain). This 1/5 was then

purportedly split six ways. The two Defendants each claim one of these 1/6 fractions.

But, Defendants claim more water than their fractions allow—especially with respect to

winter water. They each claim .90 acre-feet (AF) for year-round use, a simply unsupportable

number under the 1934 Agreement.

Plaintiffs’ concurrently filed Motion for Summary Judgment Re: Validity, Nature, and

Priority of WRN 57-7800 details what, if any, rights Defendants currently hold. By this Motion,

Plaintiffs ask the Court to apply the 1934 Agreement as the lens through which the water rights

2
Defendants may hold must be viewed. In other words, Plaintiffs seek a declaration of the Court

that whatever rights, if any, Defendants may have to Little Cottonwood Creek water are limited

and governed by the 1934 Agreement.

STATEMENT OF UNDISPUTED MATERIAL FACTS

The 1934 Agreement

1. On June 16, 1910, Judge C.W. Morse signed the Little Cottonwood Creek Decree,

also known as the Morse Decree. (Morse Decree, relevant portions attached as Exhibit 1.)

2. The Morse Decree awarded a first primary water right of .25 cubic feet per second

(cfs) to the South Despain Ditch (South Despain Morse Decree Right). (Id. at 7.)

3. The award was to the South Despain Ditch itself, and did not mention specific

Despain families. (Id.)

4. On August 8, 1934, five Despain parties—Louis Despain and Annie Butler

Despain; Alva Butler and Anna Laura Butler; George Despain and Prudence Despain; De Bart

Despain and Bertha Despain; and Clarence Giles and Laura Giles (the Despain Parties)—signed

an agreement with SLC, granting to SLC the right to the water “during winter or non-irrigation

season.” (1934 Agreement, attached as Exhibit 2.)

5. The 1934 Agreement provides, in part,

[The Despain Parties] hereby grant, bargain, sell and convey unto [SLC] the right
to the use of the primary waters aforementioned during the winter or non-
irrigation season from October 1st to April 1st of the following year, excepting
therefrom a culinary reserve of 7,500 gallons per day which is to be delivered into
said pipe system during such winter or non-irrigation season, together with 500
gallons per day which the [Despain Parties] agree to allow to flow through the
branch line for delivery to L. B. Maxfield, his successors assigns.1

1
The 500 GPD for Mr. Maxfield was conveyed to SLC by an agreement and deed dated 1989,
attached as Exhibit 3.

3
(Id. at 3.)

The Section 24 Litigation

6. On June 3, 2005, SLC and Sandy City filed a Joint Petition for Interlocutory

Decree under Utah Code Section 73-4-24 in the Third District Utah Lake and Jordan River

general adjudication, Case No. 360057298. A true and correct copy of that Joint Petition is

attached as Exhibit 4. That case will be referred to as the Section 24 Litigation.

7. Section 73-4-24 in effect at the time, provided,

If, during the pendency of a general adjudication suit, there shall be a dispute
involving the water rights of less than all of the parties to such suit, any interested
party may petition the district court in which the general adjudication suit is
pending to hear and determine said dispute. . . . Thereafter the court may hear and
determine the dispute and may enter an interlocutory decree to control the rights
of the parties, unless modified or reversed on appeal, until the final decree in the
general adjudication suit is entered.

Utah Code Ann. § 73-4-24 (1953).

8. The Joint Petition raised the competing claims of petitioners SLC and Sandy City

and respondents Dr. Kevin Tolton, Mr. Haik, William Hoge, Judith Maack, Marvin Melville, and

Butler Management Group to a portion of the South Despain Morse Decree Right. (Joint Pet. ¶¶

5, 8, Ex. 4.)

9. SLC’s claim was based on the 1934 Agreement. (Id. ¶¶ 9-14.)

10. Specifically, SLC alleged that the “1934 Contract . . . is binding upon the

successors of George F. [a]nd Prudence B. Despain.” (Id. ¶ 13.)

11. It sought a declaration that it “has the right to divert all of the primary right of the

South Despain Ditch as described in the Little Cottonwood Morse Decree .25 cfs, from October

1 to April 1, into the Murray City Penstock and use all of the described winter water, excepting

4
only 7,500 gpd to be delivered off the Murray Penstock as described in the 1934 Contract.” (Id.

at 9, ¶ 1.)

12. On July 5, 2005, SLC and Sandy City filed a Motion to Consolidate the Section

24 Litigation and Haik v. Sandy City, Case No. 050911311, which had been filed shortly after the

Section 24 Litigation. A true and correct copy of the Memorandum in Support of the Motion to

Consolidate is attached as Exhibit 5.

13. SLC and Sandy City noted that both “cases involve the substantially identical

issue of competing claims to title to a portion of a decreed Little Cottonwood Creek water right.”

(Id. at 3.)

14. The Section 24 Litigation respondents, including Mr. Haik and Butler

Management Group, moved to dismiss the Joint Petition and opposed the Motion to Consolidate.

A true and correct copy of the Memorandum of Points and Authorities in Opposition to Motion

to Consolidate is attached as Exhibit 6.

15. In doing so, the respondents, including Mr. Haik and Butler Management Group,

represented to the court that “In the Quiet Title Lawsuit [(Haik v. Sandy City)], Respondents

specifically acknowledge an interest held by Salt Lake City and do not contest Salt Lake City’s

rights.” (Id. at 3.)

16. After considering Respondents’ Motion and a similar motion/opposition by the

State Engineer, the district court dismissed the Joint Petition and denied the Motion to

Consolidate. A true and correct copy of that Order is attached as Exhibit 7.

5
 17. Based on Respondents’ explicit acknowledgment of SLC’s rights under the 1934

Agreement, SLC did not appeal the dismissal of the Joint Petition and did not move to intervene

in Haik v. Sandy City.

The Present Case

18. Through the present case, SLC seeks a declaration “adjudicating and declaring

SLC rights under the 1934 Contract to insist that any winter water taken under the South Despain

Ditch first primary right be taken only as described in that 1934 Contract.” (2d Am. Pet. for

Judicial Review & Compl. ¶ 127.)

19. Mr. Haik and the Trust’s predecessor in interest have admitted that “the 1934

contract between SLC and South Despain Ditch water right holders conveyed to SLC the winter

portion of the South Despain Ditch first primary award, excepting 7,500 GPD to be delivered

from a pipe from the Murray Penstock,” and that “Under the 1934 contract, SLC holds title to all

winter water available to the South Despain Ditch first primary award, less and excepting the

reservation of 7,500 GPD to be delivered by SLC from a six-inch pipeline leading from the

Murray Penstock.”2 (Haik Answer ¶ 17 (admitting ¶¶ 54-46 while emphasizing that the “less

and excepting” means “Salt Lake City’s interest excludes the ‘7,500 GPD to be delivered from a

pipe from the Murray Penstock under the 1934 contract’”).)

20. Both Mr. Haik and the Trust have denied that SLC is entitled to the relief it seeks

relevant to the 1934 Agreement. (Haik Answer ¶ 1 (denying ¶ 127); Trust Answer ¶ 3 (same).)

2
Despite this admission by the Trust’s predecessor in interest and Mr. Haik, who is represented
by the same counsel as the Trust, the Trust has since denied this allegation. (Trust Answer ¶ 3
(denying ¶¶ 55 and 56).)

6
 ARGUMENT

SLC IS ENTITLED TO A DECLARATION THAT ANY RIGHTS DEFENDANTS HAVE

DERIVED FROM WATER RIGHT NUMBER 57-7800 ARE SUBJECT TO AND
LIMITED BY THE 1934 AGREEMENT.

A. Defendants are judicially estopped from denying SLC’s rights and interests
under the 1934 Agreement.

Having previously “acknowledge[d] an interest held by Salt Lake City” under the 1934

Agreement and stated that they “do not contest Salt Lake City’s rights,” Defendants are

judicially from now denying the validity of the 1934 Agreement or SLC’s rights thereunder.

“Under judicial estoppel, a person may not, to the prejudice of another person, deny any

position taken in a prior judicial proceeding between the same persons or their privies involving

the same subject matter, if such prior position was successfully maintained.” 3D Const. & Dev.,

L.L.C. v. Old Standard Life Ins. Co., 2005 UT App 307, ¶ 11, 117 P.3d 1082 (internal quotation

marks omitted). This doctrine “prevents a party from seeking judicial relief by offering

statements inconsistent with its own sworn statement in a prior judicial proceeding.” Salt Lake

City v. Silver Fork Pipeline Corp., 913 P.2d 731, 734 (Utah 1995). It applies when four

elements are satisfied: “(1) the prior and subsequent litigation involve the same parties or their

privies; (2) the prior and subsequent litigation involve the same subject matter; (3) the prior

position was ‘successfully maintained;’ and (4) the party seeking judicial estoppel has relied

upon the prior testimony and changed his position by reason of it.”3 Orvis v. Johnson, 2008 UT

2, ¶ 11, 177 P.3d 600.

3
There appears to be some question as to whether bad faith is an additional element of judicial
estoppel. In Orvis, the Supreme Court noted that Utah “cases have also mentioned another issue
relating to judicial estoppel, which the court of appeals has explicitly required as a fifth element:
bad faith.” Id. ¶ 11, n.1. But, the Court did not include bad faith in its list of elements. See id. ¶

7
 Each of the four elements required for judicial estoppel is satisfied here. First, it is

undisputed that both the Section 24 Litigation and the present case involve the same parties or

their privies. Mr. Haik, Butler Management Group (the Trust’s predecessor in interest), and SLC

were all parties to the Section 24 Litigation. Mr. Haik, the Trust, and SLC are, likewise, all

parties to the present case.

Second, both the Section 24 Litigation and the present case involve the same competing

claims to the South Despain Morse Decree Right. Specifically, both involve Mr. Haik’s and the

Trust’s (through its predecessor Butler Management Group) claim to the South Despain Morse

Decree Right through Lot 31 and SLC’s claim to a portion of that right under the 1934

Agreement.

Third, Defendants’ acknowledgement of SLC’s rights under the 1934 Agreement in the

Section 24 Litigation was “successfully maintained.” This acknowledgement served as a basis of

the Section 24 Litigation Respondents’ Motion to Dismiss and opposition to the Motion to

Consolidate. Respondents succeeded on both. The Joint Petition was dismissed and the Motion

to Consolidate was denied.

Finally, SLC relied on Defendants’ acknowledgement of its rights under the 1934

Agreement. It was due to this acknowledgement—the then primary dispute between SLC and

the Section 24 Litigation Respondents—that SLC did not appeal the dismissal of the Joint

Petition or seek to intervene in Haik v. Sandy City. Had SLC known that Defendants would later

claim that their respective portions of mother water right number 57-7800, if any, are not subject

11. As discussed below, regardless of whether bad faith is considered an element or an

additional consideration, it is satisfied in this case.

8
to the terms of the 1934 Agreement, SLC would have persisted in seeking to have that issue

resolved either through the Section 24 Litigation or Haik v. Sandy City.

Given their prior acknowledgement of SLC’s rights under the 1934 Agreement,

Defendants are judicially estopped from denying those rights here. The Utah Court of Appeals

has affirmed application of judicial estoppel under similar facts. In D.U. Co., Inc. v. Jenkins,

2009 UT App 195, 216 P.3d 360, the district court held that the plaintiff was judicially estopped

from asserting legal and equitable claims in the property at issue. In a prior lawsuit in 2005, the

plaintiff had “moved to dismiss itself as a party, stating that it ‘has no legal or equitable interest

in the Property.’” Id. ¶17 (alterations omitted). The district court in the 2005 lawsuit granted the

plaintiff’s motion. The plaintiff then filed the suit at issue, arguing that it had both a legal and

equitable interest in the property. The Court of Appeals affirmed the application of judicial

estoppel, explaining, “Because [the plaintiff] successfully maintained in the 2005 lawsuit that it

had no legal or equitable interest in the Property, . . . [the plaintiff] should be judicially estopped

from now asserting the opposite, to the prejudice of the [defendants].” Id.

As in D.U. Co., Defendants successfully maintained in the Section 24 Litigation that they

acknowledged and did not challenge SLC’s rights under the 1934 Agreement. This

acknowledgment cannot be said to be a mistake or inadvertent. See 3D Constr., 2005 UT App

307, ¶ 12. Rather, it was an affirmative representation as to Defendants’ acknowledgment of

SLC’s rights. See id. To the extent Defendants have changed positions, their initial

acknowledgment can only be seen as designed to induce SLC to refrain from acting further to

have the issues regarding the 1934 Agreement resolved in either the Section 24 Litigation or

Haik v. Sandy City. It falls squarely within the ambit of judicial estoppel. See Silver Fork, 913

9
P.2d at 734 (noting the “purpose of judicial estoppel is to uphold the sanctity of oaths, thereby

safeguarding the integrity of the judicial process from conduct such as knowing

misrepresentations or fraud on the court”).

B. The 1934 Agreement is unambiguous and enforceable on its own terms.

Even if Defendants are not judicially estopped from denying SLC’s rights under the 1934

Agreement, that Agreement is unambiguous and enforceable on its own terms. See Wagner v.

Clifton, 2002 UT 109, ¶ 12, 62 P.3d 440 (“If the language within the four corners of the contract

is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual

language, and the contract may be interpreted as a matter of law.” (internal quotation marks

omitted)).

Under the Agreement, it is clear that the Despain Parties conveyed to SLC all of the

winter water under the South Despain Morse Decree Right except for the 7,500 GPD they

reserved for themselves and the 500 GPD they allowed L.B. Maxfield to use. There can be no

other interpretation of the 1934 Agreement. Indeed, in the present case, Mr. Haik has admitted

that “Under the 1934 contract, SLC holds title to all winter water available to the South Despain

Ditch first primary award, less and excepting the reservation of 7,500 GPD to be delivered by

SLC from a six-inch pipeline leading from the Murray Penstock.” (Haik Answer ¶ 17.)

C. SLC is entitled to declaratory relief.

Either as a result of judicial estoppel or under the plain terms of the 1934 Agreement,

SLC is entitled to declaratory relief establishing that any rights Defendants acquired that have

derived from WRN 57-7800 are subject to and limited by the 1934 Agreement. Specifically,

10
SLC is entitled to a declaration that it owns all of the winter water under the South Despain

Morse Decree Right less 7,500 GPD.4

Under Utah Code Section 78B-6-401, the Court has “the power to issue declaratory

judgments determining rights, status, and other legal relations within its respective jurisdiction.”

Utah Code Ann. § 78B-6-401(1). “A person with an interest in a deed . . . or written contract, or

whose rights, status, or other legal relations are affected by a . . . contract . . . may request the

district court to determine any question of construction or validity arising under the instrument . .

. and obtain a declaration of rights, status, or other legal relations.” Utah Code Ann. § 78B-6-

408. For declaratory relief regarding a contract, it is not necessary that the contract has been

breached—“A contract may be construed before or after there has been a breach.” Utah Code

Ann. § 78B-6-409.

Here, SLC is entitled to the above-requested declaratory relief establishing its interests

under the 1934 Agreement. As discussed above, the 1934 Agreement is an unambiguous

conveyance to SLC of all of the winter water under the South Despain Morse Decree Rights

except for 7,500 GPD reserved to the Despain Parties.5 SLC is entitled to a declaration

confirming its interest in this winter water.

CONCLUSION

For the foregoing reasons, SLC is entitled to summary judgment in its favor on its claim

for declaratory relief regarding its rights under the 1934 Agreement.

4
It is likely the calculation of what portion of the 7,500 GPD Defendants have an interest in will
need to occur. This is dependent upon, among other things, the Court’s resolution of Plaintiffs’
Motion for Summary Judgment regarding the validity, nature, and priority of Defendants’
claimed water rights.
5
Again, Mr. Maxfield’s 500 GPD was later conveyed to SLC.

11
DATED this 26th day of September, 2016.

SNOW, CHRISTENSEN & MARTINEAU

/s/ Scott H. Martin

Shawn E. Draney
Scott H. Martin
Dani Cepernich
Attorneys for Salt Lake City Corporation

12
 CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of September, 2016, I electronically filed the

foregoing SALT LAKE CITY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE:

1934 AGREEMENT with the court using the greenfiling system which provided notification to

the following:

Paul R. Haik
KREBSBACH AND HAIK, Ltd.
100 South Fifth Street, Suite 1900
Minneapolis, MN 55402
phaik@haik.com
Attorneys for Mark C. Haik and the Pearl Raty Trust

/s/ Stephanie J. Chavez

4838-0086-9175, v. 1

13
Exhibit 1
 T'f:IRD JUDICIAL DISTRICT COURT OP
UTAE, CAL: LAVE COtJPTY.
(Chancery Division.)

nION & EAST JORDAN IRRIGATION COMPA

NY, a corporation,

Plaintiff,

v.

'RICTAF.DS IRRIGATION COnPANY, a corpo

ration, Peter Anderson,
Russel Archibald, W. F. Atwood, Josep
h E. Allel, Peter Anderson,
A. E. Anderson, Charles Anderson, Ameri
can Smelting & Refining
C w,pany, a corporation, Dyre Ammun
deen, Neils Anderson, NePhi
Anderson, William Atwood, Carl Adkin
son, Milan N. Atwood,
R ebecca Tanner Adams, G. A. Anderson, Juliu
s Anderson, John Z.
Anderson, all the heirs of Dougal Adams
on Alexander Adamson,
Pe er Adamson, 'William Adamson, David
Ada/eon Dougal Adamson,
Mr:,. S. F. Atkinson, M. M. Atwood, Brian
d Aehley,
Henry W. Brown, Henry M. Bird, Villi
am Bradford, William Boyce,
John Boyce, Linsey Brady, Willard C. Bergo
n, administrator of
the estate of Ishmael Phillips, decea
sed, Samuel R. Bennion,
Fr noes Beckstead, Christina Bird, John
Berger, Gottlieb',.,'
B erger, Arnold Berg, C. D. Brinton,
John Bateman, Maria Bohn,
Olof Bohn, Sarah Birch, Warren Brady, Robert
Brown, Martin M.
Bird, P. J. Bishop, Philander Butler,
A. J. Butler, William
Butler, Sarah Buxton, Sarah Buecton, Thoma
s Bagley, Willard C. [ z
3atrgon, John E. Bennion, Thomas Birch, Prank
Bell, Administrate ,
Forman Bamberger, Christian Berger, Marti
n Bird, Charles E. Bird
Frederick Bird, James Brickhouse, D. B. Brint
on, Administrator,
D, F. Bellin, R. W. Ballard, J. S. Barratt,
Peter Barratt, Orson
Barratt, Walter Barratt, Prank Parrett, Mrs.
Butler, Joseph Beringer, Marion F. Brady John Barrett, Alfre
, MarionBrady,_EYrum R.
Brady, D. B. Brinton, John Doe Baker, Willi
am Bradførd,,AdminIS-
trator of the estate of Roswell Bradford, decea
sed:, Bliiaberth ,
Butterfield, Jamimah Butterfield, Kathe
rine Buttiarfielc rah ;-
Butterfield, Mrs. Godfrey Berger, Charles Berg,
WilliaM:Bird, Ytt ,
Bertia Bishop;-John Beckland, John Birch, Simon
Bambrger;;;CArlt.
Bell, administrator of estate of JameSBel 4,
l, 'deceased'; William
B eckstead, Willard C. Bergen, John Boyd, Alfre --41
d J. - Butler»Watte
P. Brady, Lige Butterfield, George Brown, W. 1R1
Butt, Aleck Brand, Mat BishOp, L. A_ Brady Bingh R. 1 1,
, am CanyenlladI
road Company,
.„4
Richard Cowley, Rffie; E. Cowley, guard • r,
ian of the pereOns;'Ud_
estotesuef Ivy Dean Cowley, Laura Pearl
Cowley, Frank:SOffie
Cowley, Frederick Wilford Cowley, and
Fred S.'CoWieY,Sail L:
Chasa Melvina M. Caheon, Louisa MauterChri
steneetr yde Chambere,
Nikis,Christensen, 31ettieChrieteneen, John P.
Cahoen;'lialliam _
Cock, James W. CdI - non lienry:Chishelia,',jaMea'thanning,
Christieneen,i-Vargaret earrUth; TMary CahCon:»We
Callaghan, L. A.-Coplin ll4 Iark,.:
illiam CoCik,John 'Do e,yClas-k'ØizoaeF'
Correct nask is Willia .- Clark„ RIIIMe ,Cole Charlaajecile
Cole, Cahoon & MaTfieldIrrigation:CoMpanyjaCeripar s4A
Ktre l.7m
h e:.rs of James Channing, deccaecd, Catherine
Chc.nning Charles Caldwell, William Cellins,'Rerain aACI$
Ernest Ce.ho
' on, Fred Carlson, Emily
William B. Cole, Joseph C. Cahoon, Eltlra Ay CellinS,_
De'-pain, °Bear N, Deepain, George Dryblira, -Le*le: 00456 _
Derpain, Mahala Barton, Johanna C. Dorinellson, :aeob',Turuite
SLC 0001
 Despain, James Dunster, Maud Davis
Edwin L. Davis, Alice Davis, Henri , John Durrell, C. Dahlberg,"
etta •Doran, Albert Davis, Wil-
liam Dunn, Ellen Dryburgh, George F. Despa
Frank Despain, Eliza Ann M. Doty, Edgar in, Debar.t Despain
.,Deepain, 'Andrew
Caroline Erickson John'!Vane, N. W. Ericson,
Ericson, Charles iricson, Matthew <,Elli Leviah Egbert, Vic or
Errekson, George Eatchell, -Norme".trekeon son, John'Evans,-.Thee. 33ohnl,
whose• ..Z.ciirr ect is
Norman W. Erekson, Thebdore'.Erekeön, J. , .
T." Erection Victer',Eritk
e on, John Evans, Alice Eddine, . - David E. ,Ely, Prande
A. Ely, Henry Erekson,' John' D.•Erickedni"y.-B.'
Erekson, Isabella B.'.Erekson,'John F. Ereki ErickeOn;''T.'533;;;Z:
C. 0. Erekson," Gue Edmond, Peter Engeremene on "Josei :William'H.;-,Er elteo ,
Etchell, Mrs. Mary Erekson,, Mrs;'.Mary Engleon4 Dh 'Preksät;Ann
s,- Mra.' Peters ,'EreksOXI IL
C. R. ELma.ine Mrs .', Willtan Erige David EnglUnd, Johri .
and John G. Sharp -Renry Erickson; G'harles EriCksön, .Thee EdWards
doreJ .
Erickson, Norma Erekson;

O. A. H. Foulks, hrum H. Fox-bush, David Prame,,,-.

Amos Fenster-maker, James Farnsworth, Lorin E.-.Porbuth7
'.,Erandis'
Forbush, Lester Forbush, Mrs. G. A. Porbueh', Christian
Anna Fre.3man, John A. Po ulk Pellah,
:,Thomas Pox,- Maud _Tern;- Carolina
Penstermaker, Martha Ferkusen;- Dr;-,,W.,,E. - Parrib'ee';' James '
Farnsworth, Sarah A. Forbush;,Lotia E. Forbush, ''.

Jatnas Godfrey, ,John Gordon,' Prank Greenwood, :Orson Green

Greenwood , Eric Gillen,- -John George,' Jaiad,Gilbert,."-Mrs.,wood, Ezra
Gilbert, Robert Gray, George Granter»Jarees''Gallyer,'. Thoma James
G ermania Silver Works Company, a corporatio s Geer
n, 'Greenwood,
Ann H. Greonwöod,-- Mary. E. Gregory,:Poster_Greenwdo4*3»17.' Grif7
fith, J. H. Galbrough, Isaac Gordon,:',Nalliam•'Gordoni..,'Matthew
Gleason, John Gilber,t C. E. Gatifin t','Alfred ' Godfre
H. Gabbott--7-,'Rhb: :y_
h- -.'....Ä. Elizabeth
Gilbert, "aaviinetrii.tr ik" of fee'tate et jazile l eis(5a eed
Mrs, Richard Gilbert;4,,Mrs»'EriiiitGo'dfreti- jähiii),GOdfi 2 iY7iintl,v.':-.„.
Daniel S: 1
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Hyrum ,Graham,. D. D.M. Griffrn';, 'Albert'43
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Richard HoWe; H. R. Huffakir;4zekial»5
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H ender s on,' Emma Han fi „-:,,-thei.-7';eit ii,f6fJöiiii'5.ri
Peter,%,T'ohnson, deceased; :'`,,lieistrdni;'.'Horii,'SilVer7,-Ifir ittig
a corPOration,1 Martiii'Rarilien7-•Tshr'YRolt
H eu e t3 y Rachel Han's
Helm, John Ge or go:Hansen ';':-HighlinCtI3o5r -.S.:,-, Coniiiany;:"JöWe
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Jol:11 G. Johnson, David Jones, s, Jr„

Erastus Kidd, Mary Ann Keep,

Fergus Lester, Thomas Labrum, Hans

Mary Jane Litson, P. J. Anderson Larson, Mrs. Richard Litson,
Lundstrom, Juan G. Labrum, Hans
Larson, Joan Jeanette Litson, .,
William Langton, John Lynn, all
h eirs of Mrs. Emma Lym, John Lym, the
Joseph Lym, John Larsen
en,
Nao3,lia Lynn, Naomia Lym, Robe
rt Leggitt, William Larsen,
Liniblade, Albert Larson, Henr
iette Larson, F. M. Larson, Euge
Lewis, Trustee, Eugene Lewi ne
s, Mrs. Hyrum Larsen, Yrs. L.
Lyon, Joseph Lynn, Job H. Leverson P.
,-
Henry C. Monteer, William Monteer,
E. R. Morgan, James Muir,
James R. Miller, James A. Muir,
Trustee of Granite Ward of Jord
Stake of Zion, Church of Jesus an
Christ of Latter-Day Saints, Nary
A. Mattson, Mrs. E. A. Mitchell Davi
, d McCleary, Marlen E. Monson,
Niels Monson, Jacob Manse, Sr.
Charles P. - Myers, Ann Myers,
Michael McMillan, Sr. , Neal Mcii
llan, Michael Mause, William A.
McMillan, Jacob Meuse, Jr., Davi
d A. McMillan, John Meyers,
Michael McMillan, Jr., Bernard Meye
Marriott, Thomas Middleton, Luke r, Hiram Monteer, Timothy
Morris,'Orson Morris, John
McComie, Joseph Marriott, Jane
McClary, Administratrix, C. L. t
Miller, John Doe Marti, (true name
unknown), William McClary,
C. P. Myers, M. J. Malstrom, D.
W. Moffatt, James McHenry, Sarah 1
R. Moffat, P. T. Miller, L. C.
Miller, administrator of the esta
of J. R. Miller, deceased, Ethel Tann te
tic, Emma Middleton, Neal Y. McMi er Middleton, R. P. MeClin-
llan, Robert Monteer, John
2Almstrom, Laura Morrow, Mary Myers,
McCloy, John McCloy, Emma McGhie, H. T. Matthews, Richard D.
John McCleary, U. G. Miller,
administrator of the estate of Reub
en Miller, deceased, Miller
Cahoon Company, a .corporation, Osca
r W. Moyle, Charlee Milne,
Peter McMillan, John P. McOmie, H.
W. Myers, Richard McCloy,
Robert Morrell, William Moon, Geor
ge P. Mawlan, Ben Meyer,
Eliza Ann Middleton, Peter B.
McMillan,
David Nichols, Lewis P. Neeley,
Cecelia Nawahine, Nilson and
Ejork, Niels Nordquist, David
Nicol, Jr., David Nicol'
George Nowlen, Harry Nichols, Sr.;
Josephine H. Neilson, Will
Noble, Andrew Nelson, Jane E. iam
Noble, Fred Naylor, Larae Neil
Leo Nester, Neils Nelson, son,

Charles Oborn, Charles Osborne,

Edward Ottley, James Olson,
Carrie Olsen, Olsen and Steele,
Ruhle Oliver, James Oborn,
John Oborn, Jr., William Oborn, Dira
Omanson, Dira Ormanson,
George Olson, Tred Olson, Ruel Oliv
er,
James Proctor, David Proctor,
Henry
Company, a corporation, J. J.:Proct P. Park, Pioneer Nurseries
unknown), Alma Proctor, Fred Park or, John Doe Price (true name
ins, C. J.. Pettereon;;Trank
ProCtor, P. A. Peterbaugh„,Wial
iarl D. Park, Lillian
Park, David Powell, Park, James
C. j;'':,Peterson, Eric Peterson,'
Mrs,-Thomas Powell, A. 7. Peter Peterson
1patterson Roert..:
Joseph G. Park, Effie CowieY,P PiarkLeroyPa
Par
rkk,
Fred Powell, Mre Bertha Pet ark, HenrY ';,:Perry';Vo
b augh, David A. Pr oct or,
Ertit
6
Richards Irrigation Company,
a`eorporation,:-A 11 1Rotk,j6
Reading, Silas Richards, Erne
tt Richards John W.,BiCharde
Richards, Ann Rowan' J. Read 'e
ing, 'Arthur RetzbeTr n,W D;Aliagii
Peter Rosin, John Richardson, :Car
los RingrOee ilWROMhey
N. C. Lee Russel, Ina Tanner Ring
rose, Sarah 1,4RiY,Ifi •
SLC 0003
 -4-

Christina Robinson, R. E. Rasmussen,

R. Raymond, John Rosin,
A. E. Rash, The Rio Grande Western
Railway Company,
Sandy Irrigation Company, a corporation,
Hyrum Smith, John Doe
Stingruber (true name unknown), Danie
l Simper, Nephi Smart,
Christian Steffenson, Andrew Swanson, Georg
e T. Shell, Albert
Smith, S. Sanders, Heber Sanders, Ann
M. Sanders, Julius Steffer-
son, Hyrum Stoffer,John Staffer, Ann
Stoffer, Frederick Staffer,
Samuel Staffer, John Sestrom, Barton Snarr
, administrator of the
estate of Thomas Snarr, deceased, Peter
Smajatovich, Mary Nauss
Steffenson, Samuel Stauffer, Margaret
McMillan Short, George W.
Spencer, Alfred Smith, K. B. Smith, Sandy
kips Line Company, a •
corporation, Thomas Smith, Jr., Thomas H. Smart
, Jr., Thomas F.
Smart, Sr., John Z. Smart, Sarah Smith, Mary
Ann Stall, Nellie
S. B. Smith, Jeanette Spencer, A. Stewart,
John Smith, School
District No. 25, Albert Shaw, John Smart, Walte
r SmPrt, Andrew
S Salt Lake County Water Company, a corporation/suc
to
wenso
Sandy
n, Pipe Line Company, a corporation, Heber cessor
Christian Stephenson, Julius Steph H. Sanders,
enson, Joheph H. Shepherd, A. A.
Sermon, John P. Stone, J. Z. Smart, H.
M. Shepard, R. D. StockhaM,
Emily(Stauffer, Gus Sanquist, Peter Swens
on
on,' William Smith, all
the heirs of Henry Smith, deceased, Edwar
d Charles Smith,'
Joseph Smith, James Smithr-Joseph Swens
on,'Hyr
trator of the estate of Joseph Stauffer, deceaum Stauffer, adminis-
sed, Samuel Stauf-!
far, administrator of the estate of Brigham Stauffer,
deceased,
Hyrum Smith, Sorney Sanders, Bernard Stewa
rt, Mrs. Bernard Stewart,
Orson Sanders, George A. Sanders, Kitty Smith
, Jdb H. Severson,
Y. H, Smart, Jr., F. H. Smart, Thomas Smith,
Nary Ann Stahl,
M. A. Stolb,

Joseph Thompson, Jr., John Turner, John Doe -!

Turner, (true name un-
known), William David Turner, Richard Roe Turner
(true name un-
known), Janet Thompson, John-G, Thompson,
John Thompson, The
Thompson Ditch Company, a corporation, A. Thomp
son, Jesse R.
Turpin, Christian Tripp, Jacob H. Tipton,
H, J. Tipton, Christian
Thorum, Nettie Turpin, Mary Tame, E. B.
Tripp,. Neils Thompson,
Mrs. Jens Thompson, Enoch Tripp, Jr., Kate Tripp
, Jacob Tipton,
Nathan Tanner, Horace Tanner, Seabern Tanner,
Turner, Amos H. Turner, D. W. Turner, N. A. Tanner, Janel
John M. Turner, all the
heirs of John Tanner, deceased, Isaac
Tanner, Warren Tanner,
Stewart T. Tanner, administrator of the
estate of Rachel W. Tanner,
d eceased, Taylor ..e,c Brunton Sampling
Company, a corporation,
Jessie E. Tripp Louis Tripp, Wesley Tripp,
John Tripp, Tilda
Tripp, George Tingley, Joseph Thompson,
Sr., James Thompson,
Mrs. Chris. Thorum,

Union & Jordan Irrigation Company, a corporatio

n, Union Centrali-
Life Insurance Company, a corporation, Utah
Consolidated Mining ,
Company, a corporation, Union Co-op, Union
Life Insurance CompanY,
Peter Van Valkenburg, John Valentine, Walde
mar Van Cott, as
Trustee for Utah Consolidatedyin
ing C9mpany, a corporation,
_ .
The Walker Ditch Companya corTO
Walker, Mrs.Zane Wager ,(tru ratien,:
-; Charlesliernkren, John ,
. e:namo„unknewn) Joic-hrTalker,:.Jo
Walker, John" H. Walker; Fred: hn A.
Walker,"YjohnWhiclUitt hdrewAral-:...
quiet, Charles Welsh, F. Welker,Reb
eeea7Watte AkWiiii-Ulit
Julius L. White, Mrs.- SaMuelliolfie,,
of Samuel Wolfle, Aeceased,-,SyMe:Webb adtinistratti hefeitai
George,I.- 74 44-.
Warenski, David Williamsi:JOhnWooda
dabellalValkii;041bWrt.
Walker, John G./WilliaMs,' Edward
Waren
William Walker, JobePhWright, PredW.-eki luir'tiniuli
, lii&iOn
iWorngren, Charlei Di

SLC 0004
 -5-

Werngl'en, Oscar Wallan, Rachael Wineg

ar, Erwin Webb, Frederick
Warttan, Wilma Watts,'Weeley K. Walto
n, Reuben Walker,' John
Walker, Jr., Henry J. Wheeler, Joseph
Williams, Eda T. Webb,
P. Y. H. Walton, George W. Watts, Thomas Widme
r, Bert Williams,
Minette Walker, Sarah M. Williams, Hattie Webb,
James Wood, -
Albert Wood, Mrs. Elizabeth Williams, Emma Winde
- r, Charles Whale;
Leo Winward, William Wen preen, Sarah M. Willi
ams, William Eugenel .
Watts, Henry Watts, Lambert Watts, Neillgatts
,' Frede
Albert T. Walker, Ronal-Jane Walker, Wasatch & Jorda rick Wootten,
Railroad Company, n Valley

Matilda Young,

'*All unknown persons who claim the right to the use

of water from
Little Cottonwood Creek, Salt Lake County, Utah,
1

Defendants.
0000O0000

CONSENT FINDINGS OF FACT,

CONCLUSIONS OF LAW,
AND DECREE.

The above entitled action came on duly

and regularly
to be heard, the plaintiff and defendants being
represented by
counsel, testimony was duly introduced, the
case was argued and
taken under advisement, and after due consideration
the court
finds the following facts:

FINDINGS OF FACT.

Par. 1. All of the above named defendants have eithe

r been
duly and regularly served with summons herei
n, and the time to
plead has elapsed, or they have duly and regul
arly appeared
herein, and proof of all thereof is now on file
herein.
Every person so far as known is a party
hereto who claims
any water of Little Cottonwood Creak, and
publication of summons
was duly and regularlyMadaagainst all
unknown persons claiming
any water therein, due*proof.;Of whiollltno
onMae)actri
Par. 2. little bOt -6thicio4:0,r6,ok ils*e4
14r4;ii
water, situate in Salt . LakeCoiitit tia i rig4-.1
part of said County, an'dfed -bY siting endiV
mountain lakes,a.nd the whole of said stream was
, .
SLC 0005
 -6-

and undiverted for any purpose - in the

beginning of the year 1848
Par. 3. That said stream of water is
fluctuating in the
amount that it carries and furnishes in the
different seasons of
the year and in the different years; general
ly the said water
r eaches its lowest stage in the coldest weathe
r, which is usuall,
in January, and part of the time such water gradually
increases
in quantity and part of the time rapidly increases
in quantity
until about July first or July twenty-second, when it
decreasee,•
sometimes decreasing rapidly and sometimes gradual
ly, butas a
rule ouch stream increases and decreases rapidly Said stream
flows less water in the winter months than any other
time of the
year.

Par. 4, That in the year 1848 and in each year

thereafter/
until and in:,
,luding the year 1856, the water of said stream was

first diverted into the ditches in this finding specifi

ed, and
used and appropriated as a primary water right for
agricultural,
i
demectic and culinary purposes by certain of these I
defendants anit
their predecessors in interest, during each and every
year; and in
the year 1856 all the primary water
of said stream was appropria - 1
ed fog- the purposes aforesaid by such defender is ,..7,1
and their pre-' T.-''
decessors in interest, and the whole of such water 4
then was,-ereJ•
since has been, and now is, reasonably necessary for:such Uses
.
and PtA'Poses. The primary water appropriated as aforesal&a:mounte

to 94.79 second feet. The parties to this action, with but tern
exceptions, have not introduced evidence as to the -eXtent
a.
individual ownership of-waterOf.::the'reepectiveA)wner6

particular ditch, but haveProVed only:the- aggre

gaW000i
in a particular ditch,,- andyad Oirifin haVe
to distribute the aggregate amount of Water to -as,!:!PertrO
ditch, instead of distributing to each oWner What e.A)wm
such ditch. The owners of the following ditches.a.pprepriated
SLC 00061; :
 the following amounts of water, expressed in cubic
feet per
second or s econd feet, prior to the year 1856,
to-wit:
Names of Ditches. Second
!I North Despain; there . is a spring near the
head of this ditch- if the water:there
from falls below .20 second feet, then
the balance is to be taken from Little
Cottonwood, and if such spring water
exceeds such amount, then the excess is
to be turned into said Little'CottonWOOd,
.20
South Despain,

Greenwood,

Brady Number One,

Brady NuMber Two,

Biesinger,
.08
Van Valkenburg,'

Total, 2.29
i_Of the remaining part of the primary water, the difference

b etween 94.79 second feet and 2.29 second feet, or

92,56 second
feet, belongs to and should be distributed to the follow
ing five
(..itches at their heads in the following proportions,
to-wit:
Names of Ditches.

Tanner,

Richards,

C ahoon & Maxfield,

Union:&

Walker,

Provided, however, there th411o tAodUotiefi'LlrOMIlle

,
prtoi.' :y-:water=of said last five named tiitches,for,:::
, e ;salts,
,-.„ %,-12, W, i.r),:-., -:,:i:
:
.-. -...- • :'.:. ,H,-,-,,,,,-„,,
,,, .„
Count4f-'17ater'Company ita-;,,etcceeSere.,41daSkigne , 7 7'1 ;.,,

' .' • '' ' ' ' ' -,..,--,,,,- -.G-1-1-•---„i- , :;,,, ,,,,,,.'
; .-;. :„...4..j,. ,r,,, ;,T„
. • -,•-,
into'the Saridy:Diteh avliereinsf, er„03
, • '- . ,„ _ oo a e ,.., ,,„„
" ,o, -.••••:..o-,,'
,;•o' ,/ .7..:,-,:tr,,.;.,
'7 r,,,iv,,,- ; ‘- o. ,„to,o, ,-,oto,o,, ,,._;,„,..„,:=2,,,,,
The li -iilailri,Hwii iii.T.i1364i.14.1-;:ee0t6
•,,i-' • , .\• ,.:-,-.,;:i.--:•"•:::t.: °:- !'4:-I':',
. ::'-
measuring alf-the'at;er':floW:a.nt 4nat the ed,.4 4
,
above, ditche ,.. s, twelVe .- -ir(„nuthl ii'A'::teSpeetitieli:
S LC 0007
 -g-

Par. 5. The owners of the last five named

ditches are
entitled to maintain a tight dam
across Little Cottonwood at
the intake of the Walker Ditch in order
to obtain the primary
and surplus water to which they are
entitled.
Par. 6. The owners of the Brown Ditch have approp
riated
for the uses aforesaid all of the water risin
g in the bed of
Little Cottonwood between the intake to
the Walker Ditch and
the intake to the Brown Ditch, as
well asa_ll the water -that
flows past the intake of the Walker Ditch
, not exceeding in
all the maximum capacity of the Brown Ditch
, and the Brown
Ditch is entitled to take all the water
flowing in Little
Cottonwood below the intake of the Walke
r Ditch, not exceed-
ing such maximum capacity.

Par. 7. Surplus water is what runs in Little

Cottonwood
in excess of 94.79 second feet.

4_ In the year 1856 said above named twelve prima

ry ditches
were enlarged to carry surplus water and surplu water
s was ap7H
propriated therefor, and said twelve prima
ry ditches are
equal priority as to surplus water, and
aftersuch
plus ditches were constructed and enlarg
ed -todarrYjUrplue ;
water and surplus water was appropriated
therefor. The
tabulated statement below stated in this
finding shows -in
the first column the number of the primary
and surplus ditches
and the secona column shows the years
respectively when said
twelve primary ditches and said surplu
s ditches appiOPriated,-,
surplus water. Where surplus
ditches, inclUding said tvielVey.
primary ditches d are specified ,in-said ,
- Sta ient-iS41aViiiHCeSh'
taken ,out or' having miaeaPpropriitIoni

such Oitchen have no priority 'oVer;:bach

- •
e
surplUs water proportibliatply. The.figUret
express the differenCeereaPectively

SLC 0008
 the one side and column five on

the other. The figures in .columns three, four and five

express the different amounts of water in second feet and.

fractions thereof. The surplus water is to be measured at the

h ead of each ditch. - The figures in column three of .said

s tatement under the words "Second Feet" and ."100ths," opposite

the names of said twelve primary ditches, show the amount of

surplus water that such twelve primary ditches are first

entitled to take, and they take in proportion to their

such respective surplus amounts. After eaid twelve primary

ditches have been supplied with surplus water to the extent

stated in said column three, then)said next named fifteen

surplus ditches take surplus water acCordin b to their said

r espective priorities and to the amount expressed opposite

their respective names in said -column - three.Whenever there

is more surplus water than 64.30 second feet -in 'Said. Little

Cottonwood, measured at the heads of said:tWenty-seven

ditches, then none of such twenty-seven ditches - shall

surplus water as specified in said column three,'but

then take--not according to priority but--proportionatelY/

according to their respective capacities as specified in

said column five.

Surplus ditch number 28 has a capaoity of five econ

f eet, as specified in said etatumont,'but it it to':havei'no'

surplus water until said first named twenty-seven ditclies

,
- • _

havc their said total of ,eurplue water:ameUnting%tO303:57

a ccond foot, The vaid tibalitad statCment:ia_a

to-wit:

SLC 0009
 =-10-

hi, 5. co
co co 0 co /3:.
G
"-i '41 ,4
0 S4 LC
•••4 0.1
'
+ (.0 0 15..
41-'i0 0
' d OHH
Year of Appropriation.

• e) fu.
o A, ir co
1-. ,-fo 0.?
0,0 4-)
g,+,+1 co
t
Number of Ditch.

+,
cH a) 0 al al
O W ri t)J
CCd Ø
/4 m 1. 0

Ø ht2 +,
O'Ø ,1 10
0 0 cd
ad 1..4 0-4

Name of Ditch, ri ø 1:11

• 41) C> jit
Owner, or 4-› -) , I.
4-1 >i
C orporation. E-1 0 ,0 +, in co
_1_

C01.1_001.2 901 5.
/CV
•P•c4--
' 1 1856 ' Ni--
)r-th Deepain ( both to 23
2 " South Deeps.in C have
3 ^ Bieeinger 24 87 1
4 " Greenwood 71; 63 34 •_
5 " W.22. Brady or Brady No. 44
6 " Van VP 11.r enbur g 29 1 10 1 39._
7 " 1!. - H. Brady or Brady No. 1 1.61 66 82,
8 w Richarde 1- 41_ 27 6 68
9 w Tanner 2 36 e 64 11 00
10 " Uni;,-.In & Jordan 3 54`. 13 16 16 70'
11 " Cahoon & Me../crield, 6 Ea - 24 55 31 16
, 12 Walker 1 41 . .5 27 68

13 1867 Brown 2 36 i 12
14 1867 Union & Bast Jordan 9 45- 35,09 54:
15 1870 Sandy 11 81 43 87 68
16 1877 South Deepain F.a-tenelon 3 54 '13 16 70 .
17 1877 Nicol 6 99 25- 96 95,,
18 1879 Johneon or LittleNicol 1 51 y g 79. 3
19 1880 North Deepain 2.arteneion 48• 02 50•
0—
20 1886 Steingruber or Stangrover 71 2 54 25:1
21 1888 Thompeon 71' 10 08
22 1888 Griffith 24' 87
23 1894 Last Chance 3 71 13, 81
24 1894 Lym 2 78 10. 33
25 1896 Haneon,eituate on the north)
eide of Little Cottonwood), 24 87
26 1896 Brickeon 35 35 70
27 1904 Baker 35 ZS
•
6 239- 27 3;57 •'••-,•
28 1909 George

SLC 0010
 -11-

Par. 8. That the finding of fact, conclusions of law

and decree in the case in said court wherein George
D. Dryberg, I
et al., were plaintiffs, and Richards Irrigation Company
and
others were defendants, are hereby set aside and
vacated. _
Par. 9. That certain agreement dated March 1, 1878, betwee f
James Winchester and others, first parties, and Utah
Southern
Railroad Company and others, second parties, is hereby terminat-

ed and superseded by the decree herein.

Par. 10, The Salt Lake County Water Company, by agreaffient

and consent, is to have perpetually and continually, except as

hereinafter stated, turned into the Sandy Ditch - one tenth

all the primary water (except the primary water-that -goes to

said first named seven ditches specified in paragraph four

hereof) when considered as running and measured at the different

times of measurement during each year at the heads of

'Tanner;
Richards, Cahoon and Maxfield, Union and Jordan, and Walker

ditches; and, with the exception of August, if such one-tenth is

less than one and one-half second feet measured at the head of

the Sandy Ditch, then said Water Company iS ehtitled to have_

additional water turned into such ditch from Little Cottone dH

to make one and one-half second feet of water at such
head
Water Company to pay to the Treasurers of therTanner, -Richid
is

_
Cahoon & Maxfield, Union & Jordan and Walker ditches-seventy fiV
d ollars per month, payable quarter-ycarly in advance, Commencing

June 1, 1910; whenever said Water Company has turned

o:ItAllacre.
than said one-tenth in order to make the amount of water u

said one and one-half second feet then dUring :theitimeTitueeis

• • ,;•
such additional water, t shall pay to said
l'reaeuret)3 1remP
five dollars for each calendar month, andfraCtiOne,ota4

shall be paid for as full months. If said Water Comma

b e in default hereunder for twenty days after],writteiV,nkioe?
,

St_G- 001-1
 -12-

make payment, then it

shall, at the option of
any of said last
five named ditches, at onc
e forfeit to said Tanner,
Richards,
Cahoon & Maxfield, Union
& Jordan and Welker dit
ches:all its
rights and properties her
eby given to it. Said Wat
er Company
agrees to pay\ reasonable
attorneys' fees to saidTa
nn:r; Richardsi,
Cahoon & Maxfield, Union
& Jordan and Waikerditehe
s frDr'aUccess-
fully enforcing in court ,
their rights herein as tos
aidlmyments
and forfeiture. Payments her
eunder:-.shall be Made to
said '•
Treasurers in the follow
ing proportions, to-wit:
-
Tanner
4/18
R ichards
2/18
Cahoon & Maxfield
5/18
Union & Jordan
5/18
Walker
2/18
Par. 11. No defaults hav
e been entered becaus
e
difficult to say that any
one person is not entitl
ed to any
water, but no one is entitl
ed to any of the water
of Little
Cottonwood except as he may
be an owner in some of, the
ditches
to which water is distri
buted, and then only
se such d
entitled to water as her
ein found.
Par. 12. The cross com
plaints
all replies were waived.

All replies to pleadings

were waived, and all
matter
answers or alleged cross
Complaints calling for
rePliet»or
d enials were deemed

The different corpora - .

representative and:othertap
aeltii
parties

6:-,thia:aCtiOnthail4AY

Cahoon
'
 -13-

shall be entitled to tax costs for serving summonses in this

action, and such costs shall be paid as follows, to-wit:

Fifty one-hundredths thereof shall be paid by the Tanner,

Richards, Cahoon & Maxfield, Union & Jordan and Walker ditches;

twenty-five one-hundredths thereof shall be paid by -the plaintif

four one7hundredths thereof shall be paid by the Brown:Ditch-

-.
twelve oneihundredths thereof shall be paid by the :Sandy1-1
. -teh; ,:

six one-hundredths thereof shall be paid bythe Nicol Ditch-, one

o ne-hundredth thereof shall be paid by the 'johnson or iittie'

ricol Ditch; and two one-hundredths thereof shall be paid bythe

South Despain Extension Ditch.

Par. 14. Peter Van Valkenburg is hereby appointed Commiasi n-

cr, until the further order 'of this court, to carry the decree

herein'into effect. The Commissioner's arpense and compensation

shall be paid, during the season of primPry water, by the owners

of such primary water and in the proportion that each ditch is

entitled to such water; and during the season of surplus water.

such expense,and compensation shall be paid in proportion to the

amount of surplus water herein awarded to each ditch.

Par. 15. That no party to this action has held, under cla

of right or otherwise, either the open, peacerble, continuous,.

uninterrupted, notorious, visible or adverse use or possession

of any water of Little Cottonwood.

Par. 16. No party to this action has taken or:threatened t

-
take any water which the said ,plaintiff one or 'Alsentitlet

Par. 17. No party..to'thieliCtion has had knowledge Of,

.pith

feet 'Which estops him k„ •

ti
has ho dons",anyt2iin -orttbtittii
34471r4 igrt
nor 116s A:44r
hh`e :ehaii1d have 'done _
omitted to do anything -or'doncanYtliIr.8,to')mislead;

SIX 0013
 -14-

or induce any other party to this action to do anything

or omit
to do anything to his injury or prejudice.

Par. 18, No party to this action has unreasonably delayed

the assertion of his rights.

Par. 19, The commissioner provided for.herein may diVide

and distribute the water by hours or days or by constant streams,

or in any other manner, as in 'hie! judgment seems best, so as t

secure the greatest efficiency:for the water. All of the above,

however, is subject to the supervision and control of this court.

Par. 20. The decree heretofore render'ed and filed herein

and dated November 12, 1909, is aereed by all parties hereto to

b e vacated and set aside, but is aeain to come into full force .

and effect the same as though never vacated if this decree for

any cause or reason should be vacated,

Par. 21. All parties hereto have duly agreed to these.

findings of fact, conclusions of law, and decree.

CONCLUSIONS OP LAW.

Prom the foregoing findings of fact the court now

makes the following conclusions of law:

Par, 22. The water of Little Cottonwood is owned and shalll

b e distributed as specified in the decree herein.

Par. 23. The plaintiff shall pay the Clerk's costs; each

party to this action shall pay his own costs, and no costs shall

b e taxed by one party against another except that the Tanner,

Richards, Cahoon & Maxfield, Union & Jordan and Walker 'ditches

shall be entitled ic' serving sitealmoneeeinthieL,

SLC 0014
 twelve one-hundredths thereof shall be paid by the 'Sandy
Ditch;
six one-hundredths thereof shall be paid by the Nicol
Ditch; one
one-hundredth thereof shall be paid by the ZohilsonOrLi
ttle
Nicol Ditch; and two one-hundredths thereof shall be paid by.

the South Despain Thcteneion Ditch,

Par, 24. No party to this action has held, under claim of

right or otherwise, either the open, peaceable, continuous, un-

interrupted, notorious, visible or adverse use or possesb

ion of
any water of Little Cottonwood; nor has any party to:this.
jaction
taken or threatened to take any water'which the said- plainti
ff - o
or is entitled to; nor hae any party to this action had
knowledge.
of anyfact which estope him from claiming any water whichli
e ..ha
inequitable
h eretofor,,, i-- ppropriated, nor has he done anythin z: or omitted to
A
anything that is equitable, or which ehould operate as an es-
,
toppel from insistini; on all his righto; nor has any party
to ,th
h e should have-done
action omitted to do anythinE or done anything to mislead
A or pre
judice or induce any other party to this aCtion
to do anything, r
omit to do anything, to his injury or prejudice. Nor
has any pa ty.
th this action unreasonably delayed the assertion
of hie rights.'
Par. 25. All persons who have any interest in the watS of
Little Cottonwood have been duly served and have
either(pleaded
h erein or the time to plead has elapsed; and - no.erre'
:hae any rte
to such water except as specifiedin the decree
,herein;
Par. 26. All persons, together with theiragentS an
es, should be enjoined from in any wayint
erferingWith'
.th-e',1ft
,
of Little Cottonwood exceptras,dpecified ijCclec:i4iii'Lnere

- Prom

law the court

to-wit:
 -16-

Par. 27. That all the defendants in this action have been

duly and regularly served with summons or have duly and regularly

appeared herein, and they have either pleaded or the time to

plead has elapsed, the proof of all which is now on file herein,

and every person, known and unknown, who claims any water in

Little Cottonwood is now a party to this action, and has either

is pleaded herein or the time to plead has elapsed, proof of ai

which is now on file herein.

Par.' 28. That in the year 1848 and in each year thereafter

until and including the year 1856, the water of said stream was:

first diverted into the ditches in this finding specified, and

used and appropriated as a primary wac'er right for agricultural,

domestic and culinary purposes by certain of these defendants an

their predecessors in interest, during each and every year; and

ti-:c year .1856 all the primary water of said stream was appropriai-

ed. for the purposes aforesaid by such defendants and their

d ecessors in interest, and the whole of such water then was, eve

since has been, and now is.; reasonably necessary for such uses

and purposes. The priMary water aPprOpriatedas iaforeisaid :

- aMOUil

tc 94.79 second feet. The parties .to this action, with but

exceptions, have not evidence as to the extent of the

individual ownership of water the respective ovmeri

particular ditch, but have pr

in a particular ditch, and accordingly have

to distribute the aggregate amount of water to a partiCular,:titc

- . -
instead of distributing to each owner what he ,,Owne:inSUChdi

-The owners of the folloWing ditcheSlapprop'riatedOprier.:,to:2-t

y ear 1856, the folloWIng amounts of *ater,?,-exprestie

feet'..Per second or second feet,

owned by sucl- owners and are <hereby7d

SL€ 001 &

 •-!-Ne.rnes of Ditches.

North Despain; there is a spring

near the
head of this ditch; if,the wate
r there-. ,,
from falls.below :20 secon
feet," then'
the balance is to be take
n 'frOM -iLittle
Cottonwood, and if such' Sprin
g'lwaer.'-:;',",`,.
exceeds such amount, then the
-excess is'',
to be turned into said Little
Cottonivood,
South Despain,

Greenwood,

B rady Number

Brady Number Two,

Bissinger,

Van "Valkenhurg,

Of the remaining part of the primary

water
b etween 94.79 second feet and 2.29
second feet, r 92.50 second
feet, belongs to and is hereby dist
ributed to the owners of the
following five ditches at their head
s in the following propor-
tiono, to-wit:

Names of Ditches.'

- Tanner,

Richards,

Cahoon & Maxfield,

Union & Jordan,

Walker,

/4.

SLC
 -18-

Par. 29. The owners of the last five named

ditches are
entitled to maintain a tight dam acros
s Little Cottonwood at
the intake of the Walker Ditch in
order to obtain the primsry
and surplus water to which they are
entitled.
Par. 30. The owners of the Brown Ditch have appro
priated
for the uses aforesaid all of the water
rising in the bed of
Little Cottonwood between the intake to the
Walker Ditch and
the intake to the Brown Ditch, as well
as all the water. that
flows past the intake of the Walker Ditch
, not exceeding in
all the maximum capacity of the Brown Ditch
, and the Brown
Ditch is entitled to take all the water
flowing in Little
Cottonwood below the intake of the Walke
r Ditch, not exceeding
such lia.ximum capacity.
Par. 31. Surplus water is what rune in Little
Cottonwood
in excess of 94.79 second feet.

In the year 1856 said above named twelv

e primary ditches(
were enlarged to carry Surplus water
and surplus water was ap-
propriated therefor, and said twelve
primary ditches are of -
equal priority us to surplus water,
and after such year surplus
ditches were constructed and enlar
ged to carry surplus water
and surplus water was appropriated
therefor. The tabulated
statemente below stated in this finding
shows in the first
column the number of the primary and surpl
us ditches, 'and
the second column shows the years respe
ctively when said
twelve primary ditcher and said
surplus ditches appropriated
s urpluF, water, Where surplus ditch -es, inclu
ding said twelve',
primary ditches, are -:spedifi
_: - ,-,, ., edinSaid:stateme7tae .hayim
. , :z,, , :-,,.:__-7:.'::•:,-',:':...-. : .t-'.;_.:,- --:, :;,--
b een taken out or : having :.rail'e,---' , ..sfr
'
:tt.pp,,.
-'''''''''' ropr ''' I- a tion - ts'in'the"4tirtf
, ._., ir'i'y
,,
tllen such surplus ditches.have, :
, ',4,4)
-. ,wc*
7neTT160tY -:;ci St a0 ' '.- t.v.,
they take surplus water prop6rflonat.p
lyi
• . . , :,:...,:., - ..- .,. .. ..The Ort
,,, .t,A!' .': :?,
column four express the differences respectively, betITeen',".,:. 011stii1 .,
7

sLc i
 -19-

three on the one side and column five on the other.

The figures in column's threw, four and five express

the different amounts of water in second feet and

fractions thereof. The surplus water is to be measured

at the head of each ditch.' The figures in column

three of said statement under the words "Second Feet" and

"100ths," opposite the names of said twelve primary

d itches, show the amount of surplus water that such

twelve primary ditches are first entitled to take,

and they take in proportion to their such respective

surplus amounts), After 'said twelve primary ditches

have been supplied with surplus water to the extent

stated in said column three, then said next named fif-

'•
t eerffsurplus ditches take surplus water according to

their said respective priorities and to the amount

e:, pressed opposite their respective mates in said

:

column three. Whenever there is more surplus water

than 64.30 second. feet in said Little Cottonwood,

measured at the heads of said twenty-seven ditches,

then none of such twenty-seven ditches shall take

surplus water as specified in said column three,

b ut they then take--not according to priority but--

proportionately according to their respective capacities,

ac specified in said:column five.

Surplus ditCYCnuMber:2Chas..a

feet, as'speCifiedin4aid:stateMein
_
surplus water until sal° first

have their said total 'of :surplus

second feet. The said tabulated

•

SLC Oal9
 —20—

eo tu
• IC 0 CD • rf
, m Y, .M
re o '0 o+>
41 1-1 S. O ri
• ai 4-> eo o 2_,
0 g o
4-> .'141
.. ta . o U rl
1.4 O4 .
s ai 2.4
Year of Appropriation.
m f-4o P. as lz>. •
4-> 0, 0
al ci-4 aa, 4-> e-f 0 o0.1
lz 0 pi ri A00
cd •c:1 4-) 4. Ca
ca cd al o
Number of Ditcb.

4..> 4-4 as • 4->

ri 4-1 O >-, 0-4 al 0 cd m-,1
,1
P4-1.4 r4 r-1 O >
1.4 o o o 1:12 +, n 2)
• al la 4-> 4,
- )11 I•4 3. 0
11a 1.4 a> 4-> al C 0 +4 1->
>> +1 .4-1
O o.4 10
o o+-1 r-1 24 o
+>
4-> ri • "' .>;-)
4
}duo of Ditch, •5 g 0 ø •c1 Ør1 p,
F attlOtlSiO
Owners Or Ad 0 0
o P o
Corporation. .
0 CC' fe Pi O ,0 03.

Co1,1C01.2
I
1 ---1-
6I3 North Donpuin both to
2 ' UtIth Dimpain have
3 0 Blolsimsor
e 87
4 Oreonwood 63
5 I, V..12. Brady or Brady No. 2
w 44
0 i Van Valkonborg 10
7 ' U. Y. Brady or Iirr.dy ?Jo. 1 68
8 • Riohardn i 27
9 ' Tanner 04
10 ' Union 0.1 Jordan 16
11 le Cahoon I: Ma:
,:field, 6 35
12 1 AWalker _ 2. 27
13 I 1867 Drown a
14 1867 Union & naet Jordon
25 1870 Sandy 11
15 1877 South Degpain 2xtonnion
17 I877 HiOol 6
18 1879 Johnaøn or Little )71001
181f0 North rewpain 14~nelon
20 1886 Stoin6rubor or Btencrover
21 188C Thompoon 2
22 144a (irit:rith 24
23 1894 Last chow)* 71
24 1894 Lyn, '.. 78
25 1896 nanooni aituatOOn to.north)
Wg:of Ilttio' ottoriwbcid)
26 1096 Uridkoon
27 2.94 Dakar-,

SLC 0020
 -21-

The said surplus water is owned by the owners of the

ditches respectively as set forth in this paragraph, and

such surplus water is hereby distributed in accordance with

the foreEoing schedule contained ih thie paragraph.

Par. 32. That the findings of fact, conclusions of law

and decree in the case in said court wherein George D. Dryberg,

and
et al., were plaintiffs, and Richards Irrigation Company

others were defendants, are hereby set aside and vacated.

Par. 33. That certain agreement dated Narch 1878, be-

tween James Winchester and others, first parties, and Utah

hereby 1
Southern Railroad Company and others, second parties, is

termirated and superseded by this decree.

Par. 34. The Salt Lake County Water Company, by agreement

except as
and consent, is to have perpetually and continually,

hereinafter stated, turned into the Sandy Ditch one tenth of

all the primary water (except the primary water that goes to

said first named seven ditches specified in paragra, four

t
h ereof) when considered as running and measured at the differen

times of measurement during each year at the heads ofTanner,

Richards, Cahoon and Maxfield, Union and Jordan, and Walker

ditches; and, with the exception of August, if such onetenth"i

less than one and one-half second feet measured at the head -of

the Sandy Ditch, then said WaterCompany is entitled"te

d •
additional water turned into such ditch from Litile'CottenwOO

to make one and one-half second feet of water at suCh - head, Sai

Water Company is to pay to the TreasUrers:of -the.Tanner»Richard

Cahoon & VaXfield, Union & Jordan 'and Walker ditc~i'ea seventy- ire``
n:,i6nin64 1 71-ell'oing
dollars per month, . . ciiikitiii--yeariy
litiyaiDle
•
June 1, 1910; whenevereeaidWaterCoiPaiyhastrned

than said one-tenth in orde;taMaheZt==.1

said one and one-half,second ieti then:, uring'the

SLC 0021
 -22-

such additional water it shall pay to said Treasurers twenty-

fire dollars for each calendar month, and fractions of a month

shall be paid for as full months. If said Water Company shall

b e in default hereunder for twenty days after written/notice to

mane payment, then it shall, at the option of any of said la

five named ditches, at once forfeit to said Tanner, Richards,

Cahoon & Maxfield, Union & Jordan and Walker ditches all its

rights and properties hereby given to it. Said Water Company

agrees to pay reasonable attorneys' fees to said/Tanner, Richards,

1
Cahoon & Maxfield, Union & Jordan and Walker ditches for success-7

fully enforcing in court their rights herein as to said payments

anc forfeiture. Payments hereunder shall be made to said

Trasurers in the follow!,na. proportions, to-wit:

Tanner 4/18

Richards 2/18

Cahoon & Maxfield 5/18

Union & Jordan 5/18

Walker 216

Par. 35. No defaults have been entered because it is so

difficult to say that any one person is not entitled to any

water, but no one is entitled to any of the water of Little

Cottonwood except as he may be an owner in some of the ditches

to which water is distributed, and then only as such ditch is

entitled to water as herein found.

Par. 36. The plaintiff shall pay the Clerk's costs; each

party to this action shall pay his own costs, and no costs shall

b e taxed by one party against another re.::cept;that the,Tanner,

Richards, Cahoon & Maxfield, _Union & Jordan andJsialker:.ditches

shall be entitled to tax coots for serving sumMOnSetIfn

action, and such coots shall be paid as folloWs, towit:

Fifty one-hundredths thereof shall be paid by the TSnher;.

R ichards, Cahoon & Maxfield, Union & Jordan and Talker ditches
SLC 0022
 -23-

twenty-fi7o one-hundredths there

of shall be paid by the plain
tiff;
four one-hundredths thereof shall
be paid by the 2rown Ditch
t welve one-hundredths thereof shall
be paid by the Sandy Ditch;
six one-hundredths thereof. shall be paid
by the Nitol Ditch; one
o ne-hundredth thereof shall he paid
by the Johnson or Little
N icol Ditch; and two ones-hundredths
thereof shall be paid by the
South Despair Extension Ditch.

The costs taxed heretofore for

serving summonses in this
action amounted to one hundred and
thirty-one dollars, and such
sum is now decreed the proper soUnt
for such service.
Par. 37, Peter Van Valkenburg is hereb
y appOinted Commission- •
eg, until the further order of this
court, to carry the decree
h erein into effect. The Commission
er's expense and compensation
shall be paid, during the season
of primary water, by the owners
of such orlmFiry water e,nd in the
proportion that each ditch is
entitled to such water; and during the
season of surplus water
such expense and. compensation shall
be paid in proportion to the:
amount of surplus water herein awarded
to each ditch.
par. 38. No party to this action
has held, under claim of
right or otherwise, either the open, peace
able, continuous, unini
t,A-rupted, notorious, visible or
adverse use or possession of any
water of Little Cottonwood; nor has any
party to this action tak)an
or threatened to take any water which
the said plaintiff owns or
is entitled to; nor has any party to
this action had knowledge
of any fact which estope him from
claiming any water which he haS
heretofore appropriated, nor has he inequitablc
done anything or omitted to do
anything that is ,equitable, or which should opera
te aa_an estop-
pel from insisting on'all his rights nor
has any,partyto",this
h e should have done
action omitted to do anything or done anything to litiai6AVot
'
judice or induce any other party to
this action todoanything;, r
o mit to do anything, to his injury or prejudice.
Nor:has
to this action unreasonably delayed the assertion -of
hisA-1.
 -24-

Par. 39. The commissioner provided for herein may divide

and distribute the water by hours or days or by constant streams

or in any other manner, as in his judgment seems best, so as to

secure the greatest efficiency for the water. All of the above,

however,' is subject to the supervision and control of this court

,
}Par. 40. The decree heretofore rendered and filed heroin

and dated November 12, 1909, is hereby vacated and set aside, but

it is again to come into full force and effect, the same as though

n ever vacated if this decree for any cause or reason should be

vacated.

Par. 41. All parties hereto have duly agreed to these

findings of fact, conclusions of law, and decree.

Par. 42. All persons who have any interest in the water ofj

little Cottonwood have been duly served and have either pleaded

herein or the time to plead has elapsed; and no one has any right

' to such water except as specified in this decree.

Par, 43. All known and unknown parties hereto, together

with their agents and, employes, are hereby enjoined from in any

w ay interfering with the waters of Little Cottonwood extent as

specified in this decree.

DONE in op en court this June /6 10.

"-WT.
m AR •
0
m
B

51 -c.o 22
'
S A ..e•-•••••••••-••---
, -S
t M
r U
•
•

-Pr
Exhibit 2
 :rn4lerre/

fi /
:14 4".'

it

A GEEEMEN Z.

THIS AGRKEYSNI Entered into this 8th day of August,

19154,, by and between SALT LAKE CITY, a municipal corporation, party

, his
of the first part, and L. E. DESPAIR and ANNIE BUTLER DESPAIN
GMRCE F. DESPAIN
wife; ALVA J. BUTLER and ANNA LAURA BUTLER, his rife;
DESPAIN,
p nd PRUDENCE B. DESPAIN, his wife; De BART DESPAIN and BERTHA K.

parties
his wife; and CLARENCE L. GILTS and LAURA SUE GILTS, his rife;

of the second part, WIITESSETH:

THAT WUKREAS, the parties of the second part are the

Salt Lake
owners of primary water rights in Little Cottonwood Creak,

primary rights
County, and said primacy water rights comprise the total
of the Third
decreed to the South Despair Ditch in that certain decree
le C. W. Morse,
Judicial District Court of Utah, signed by the Honorab

Judge, on June 16th, 1910.

AND WHELEAS, the party of the first part is desirous of

during the
acquiring a portion of the above mentioned primary miters

winter or non-irrigation season.

NOW, THEREFORE, in consideration of the premises and the

hereby agrees to
agreements herein contained, party of the first part
nce of the primary
construct and maintain a main pipe line for the conveya
Line at a point
waters above mentioned from the Murray City Power Pipe
12, T. I S.,
near where said pipe line crosses the center of Suction
at a point near the
H. 1 K., S. L. D. & M., to the South Desp&in Ditch,
ed, and to construct
east line of the N. W. 1/4 of Section 12 above mention
said branch line to be
a branch pipe line of first grade galvanized pipe,

SLC 0060
 •

maintained by the parti( of the second part, running westerly from

the pipe line above described to a convenient location near the residence

of Gee. F. Dospain and will provide service pipes from said branch line

to convenient points on Do Bart Despain's, L. E. Despair's, Alva J.

Butler's and Clarence L. Giles' property and will provide an outlet at

e
the crossing of the North Despain DitCh of sufficient size to discharg

that portion of the Primary water nor owned by L. E. Despain; and further-.

more a metered service pipe will be laid from the above mentioned branch
as
line to a point on L. B. Maxfield's property which point will be located

near to the house on said property as the present ditch is located.

IT IS FURTHER AGREED that Salt Lake City is to install a

North
meter in the pipe system between the Murray Power Pipe Line and the
pipe
Dospain Ditch and will deliver the decreed primary waters into said

system as measured through said meter and the responsibility for the dis-
with
tribution of the rater among the parties of the second part shall rest

the parties of the second part.

IT IS FURTHER AGREED THAT permission is hereby granted to

of the
Salt Lake City to enter upon the premises of each of the parties
main pipe
second part to construct the pipe system and to maintain the
Lake City
line and. said parties of the second part hereby grant unto Salt

an easement for the construction and maintenance of said Win pipe line
d by
and reserve unto themselves the surface rights to the land traverse

said pipe lino.

SLC 0061
 Said parties of the second part hereby grant, bargain, sell

and convey unto party of the first part the right to the use of the

primary waters aforementioned during the winter or non-irrigation Beason

from October 1st to April lot of the following year, excepting therefrom

a culinary reserve of 7,500 gallons per day which is to be delivered into

said pipe system during such winter or non-irrigation season, together with

500 gallons per day which the parties of the second part agree to allow to

flow through the branch line for delivery to L. E. Maxfield, his successor's

assigns.

IN WITNRSS WHEREOF, the parties hereto have hereunto set their

hands and seals the day and year first above written.

S EAL SALT LAKE CITY,

911.1._p_m
By 1_, 11.3
211a1114nQJ
ti- 0 Mayor
City Recorder.

Annie Dutles in
lava J. Du lsi LmIr_DiAlQr

Coorge F. D5Dain bzwittaQs/_

De Dart DvM1.1.4 Dortha

ORPHIc t! Laura 'IAE) GiZee

Parties of the Second Part.

STATE OF UTAH
( SS.
COUNTY OF SALT LAKE )

On the 8th day of Aug., 1954, personally appeared before

me Louis Marcus and Ethel Macdonald, who, being by ma duly sworn, did say
that they are the Mayor and City Recorder, respectively, of Salt Lake City,
and that the name of Salt Lake City was attached to the foregoing instrument
by Louis Marcus es Mayor and signed by him and countersigned by Ethel Macdonald

SLC 0062
 . .-

the Board of Com-

as City Recorder, by authority of a resolution of
on the 8th day of Aug., A. D. 1934, and
missioners of Salt Lake City
persons acknowl edged to me that said corporation executed the
the said
same.

Frank A. aieldo
Notary Public, residing at
Salt Lake City, Utah.

S EAL
My commission expires Feb. 14, 196

ST ATE OF UTAH
( SS.
COUNTY OF SALT LAKE)

On the 16th day of July, 1954, personolly appeared

wife; Alva J. Butler
before me L. F. Despain, Annie Butler Despain, his
George F. Despain and Prudence B. Despain,
Anna Laura Butler, his wife;
wife; some of the signers of the foregoi ng instrument, who duly
his
acknowledged to me that they executed the same.

S EAL
My commission expires Notary Public, residing at
September 4, 1965 Salt Lake City, Utah.

TATE. OF UTAH
S
( SS.
COUNfY OF SALT LAKE )
d
On the 18th day of July, 1934, personally appeare
wife, some of the
before me CLARENCE L. GILES and Laura Sue Giles, his
acknowledged to me that
signers of the foregoing instrument, who duly
they executed the same.

Ncrtary Public, residing at

Salt Lake City, Utah.

S AL

My commission expires March 12, 1938

SLC 0063
5

STATE OF CALIFORNIA )
( SS.
COUNTY OF LOS ANGKLES )

On the 20 day of July, 1954, personally appeared

r, his wife, some
before me D9 Bast Dospain and Bertha E. Despai
forego ing instru ment, who duly acknowledged
of the signers of the
to me that they executed the same.

E, F,t_ightingflaa
N otary Public, residing at
Los Angeles, California
S EAL

My commiasion: expires July 10, 1958

SLC 0064
Exhibit 3
 WARRANTY DEED

RULON T. JEFFS, "GRANTOR", successor in interest to the

water rights of Lewis B. Maxfield and Emma A. Maxfield, his

wife, who obtained their right as successors through the

South Despain Irrigation Company water rights, hereby

conveys and warrants to SALT LAKE CITY CORPORATION, a

municipal corporation of the State of Utah, "GRANTEE", for

good and valuable consideration, the receipt and sufficiency

of which is hereby acknowledged, the right to receive 500

gallons of water per day through the South Despain Ditch as

more particularly set forth in that certain Agreement dated

July 18, 1934 between the Grantee, and Lewis B. Maxfield and

Emma A. Maxfield copy attached hereto and by this reference

made part hereof.

WITNESS the hand of said Grantor this ,5/ day of

, 1989.

/-
Rt,LON T. JEFFS
STATE OF UTAH
: ss.
County of Salt Lake)

On the 3-7— day of OL., , 19 W.

personally appeared before me L ,„(
s,0 , the
signer of the foregoing instrument, who duly acknowledge to
me that hem executed the same.

i)
" ,
yr
NOTARY Pini3qC,
SF1AJbY (-Vi7--A4/
My Commission Expires7
NOTARY PUBLIC
2/1
C-2
/ LEROY S. JEFFS
9493 r.,) Drive
i2.4D92
RLM:cc
ii/.y Commission Expires
N cY.-2mEi2r 9, 1992
STATE OF UTAH

-2-
 <7.

,36/ 94`-/e'°

AGREEMENT
4,(7) [l2'47)

SALT LAKE CITY is about to enter into an agreement with the

in Ditch located near

owners of the primary waters decreed to the South Despa
y.
the mouth of Little Cottonwood Canyon, in Salt Lake Count

WHEREAS, Lewis B. Maxfield and Emma A. Maxfield, his wife,

tic water from said South

claims to have enjoyed a right to culinary and domes

Despain Ditch.
uct
NHEREAS, it is the intention of Salt Lake City to constr
ved by the owners
a pipe line system for the delivery of culinary water reser
of which will be to dry up
of the primary water above referred to, the effect
-irrigation season from
the South Despain Ditch during the winter or non

October 1st until April 1st of each year following:

h
NOW, THEREFORE, in consideration of the construction of a branc

cient size and pressure to

service pipe, (with tap outlet at corral), of suffi
ses of Lewis B. Maxfield and
deliver at least 500 gallons per day, to the premi
water per day during such
the delivery therein of not to exceed 500 gallons of
the South Despain reserve, during
time as the same is available from the water of
1st until April 1st of each year
the winter or nonirrigation season from October
Maxfield, their successors or
following, the said Lewis B. Maxfield and Emma A.
said branch service pipe
assigns, hereby agree that the use of all water from
them in said ditch and shell be
Shall be in lieu of the winter right claimed by
Salt Lake City and that all
subject to all rules, regulations and ordinances of
, excepting however the
thereof shall be paid for at prevailing city meter rates

500 gallons per day above mentioned. Furthermore, Salt Lake City shall be under

pipe line during the summer

no obligation to deliver water through said service

er 1st, but if water is de-

or ' irrigation season from April 1st until Octob
. Maxfield,
B. Maxfield and Emma A.
livered and used therefrom, then the said Lewis
 -2-

so used at pre-
their successors or assigns, shall pay for i11 of the water

vailing city meter rates.

his
Furthermore, the said Lewis B. Maxfield and Emma A. Maxfield,
branch service
wife, their successors or assigns, agree to maintain the said

pipe line from the meter box the outlet end.

of
IN WITNESS WHEREOF, we have hereunto set our hands this 18th day

July, 1934.
Lewis B. Maxfield

Emma A. Maxfield

WIrWESS

Rose E. Marks

Accepted by Salt Lake City,

By Louis Marc
Mayor.

S EAL

Macdonaad
City Recorder
Exhibit 4
SHAWN E. DRANEY (A4026)
SCOTT H. MARTIN (A7750)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, Eleventh Floor
Salt Lake City, Utah 8411 1
Telephone: (801) 521-9000
Telecopy: (801) 363-0400
JOHN H. MABEY,JR.,(462.5).
DAVID C. WRIGHT (5-566) :-
MABEY & WRIGHTALC__
265 East 100 South, 4300
Salt Lake City, Utah 84111
Telephone:(801) 359-3663
Telecopy:(801) 359-2320

CHRISTOPHER E. BRAMHALL (A3996) BRYCE D. MCEUEN (A2182)

Assistant City Attorney Assistant City Attorney
SALT LAKE CITY, LAW DEPARTMENT SANDY CITY CORPORATION
451 South State Street, Room 505 10000 Centennial Parkway
Salt Lake City, Utah 84111 Sandy, Utah 84070
Telephone: (801) 535-7788 Telephone:(801) 568-7170

Attorneys for Petitioner Salt Lake City Attorneys for Petitioner Sandy City

IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

SALT LAKE DEPARTMENT, STATE OF UTAH

IN THE MATTER OF THE GENERAL

DETERMINATION OF THE RIGHTS TO
THE USE OF ALL THE WATER,BOTH
S URFACE AND UNDERGROUND, WITHIN JOINT PETITION FOR
THE DRAINAGE AREA OF UTAH LAKE INTERLOCUTORY DECREE
AND JORDAN RIVER IN UTAH, SALT
LAKE,DAVIS,SUMMIT, WASATCH,
SANPETE AND JUAB COUNTIES;

SALT LAKE CITY CORPORATION and

eas'e7N-07-360057298 5 -(.;\&(1E-M\
SANDY CITY, Utah Municipal Corporations,

Petitioners, Judge Timothy R.-Hanson--

vs. LITTLE COTTONWOOD CREEK

AREA 57
KEVIN TOLTON, M.D., MARK C. HAIK,
J UDITH MAACK, WILLIAM S. HOGE, Utah
residents, BUTLER MANAGEMENT
GROUP, a Utah Limited Partnership, and
MARVIN A. MELVILLE, a Utah resident,
individually and as Trustee of the MARVIN A.
MELVILLE TRUST, a Utah trust.

Respondents.

Petitioners allege as follows:

 PARTIES, JURISDICTION AND VENUE.

Petitioners are both Utah municipal corporations.

Petitioners are informed and believe Respondents Kevin Tohon, Mark C. Haik,

William S. Hone. Judith _Maack, and Marvin A. Melville are residents of Salt Lake County. In

addition, these individuals erroneously claim an interest in rights to use water from Little

Cottonwood Creek in Salt Lake County. Little Cottonwood Creek is tributary to the Jordan

River and is a part of the waters to be adjudicated in this general adjudication. This Court has

personal jurisdiction over these Respondents.

3. Petitioners are informed and believe Butler Management Group is a Utah Limited

Partnership, with it's principal place of business in Salt Lake County. In addition, Butler

Management Group erroneously claims an interest in rights to use water from Little Cottonwood

Creek. This Court has personal jurisdiction over Butler Management Group.

4. Petitioners are informed and believe the Marvin A. Melville Trust is a Utah trust

with its principal place of business in Salt Lake County. In addition. the Marvin A. Melville

Trust erroneously claims an interest in rights to use water from Little Cottonwood Creek. This

Court has personal jurisdiction over the Marvin A. Melville Trust.

3. This Petition seeks the adjudication of conflicting claims to the ownership of

certain Little Cottonwood Creek water rights. Petitioners and Respondents claim through a

common root of title, but the title of Petitioners is superior, and the Respondents have no title.

This Court has subject matter jurisdiction pursuant to Utah Code Ann. 73-4-24 and 78-3-4( 1 ).

Venue is proper pursuant to Utah Code Ann. 73-4-24 and 7S-1 -I .

This Petition seeks the adjudication of less than all of the water rights of the

parties to this general adjudication suit. The Petitioners respectfully request this Court hear and
resolve this dispute pursuant to Utah Code Ann. § 73-4-24, and enter an interlocutory decree as

prayed for in this Petition. An interlocutory proceeding as a part of the general adjudication will

prevent inconsistent judgments that might otherwise result from an adjudication of title to the

subject rights in an action separate from the general adjudication. An interlocutory proceeding as

a part of the general adjudication will provide persons claiming an interest in Little Cottonwood

Creek water rights with notice and an opportunity to be heard if appropriate.

SOUTH DESPAIN DITCH WATER RIGHTS

S. An unincorporated association of owners of lands served by the South Despair)

Ditch was affirmed and decreed a right to use .25 cfs of the primary flow of Little Cottonwood

Creek. Consent Findings of Fact.. Conclusions of Law and Decree, Union and East Jordan Irr.

Co. v. Richards fir. Co. et al., Third Judicial District Court of Utah In and For Salt Lake County,

Case No. 4502, June 16,1910 (the "Little Cottonwood Morse Decree"). Petitioners and

Respondents both claim conflicting interests in and to a portion of this right.

SALT LAKE CITY INTERESTS IN

SOUTH DESPAIN DITCH WATER RIGHTS

Between the Murray City Penstock Intake and the South Despain Ditch,

considerable water was historically lost from Little Cottonwood Creek through seepage.

1 0. Because of this seepage, as well as freezing, the South Despain Ditch users

historically had difficulty getting their winter water.

1 1. On August 5, 1934, Salt Lake City and all of the South Despain Ditch users

entered into a contract that called for the South Despain Ditch water to he di\ erted into the

M urray Penstock above the South Despain Ditch diversion. and then delivered from a pipeline

off the Murray Penstock to be constructed by Salt Lake City. Salt Lake City agreed to "provide

service pipes from said branch line to convenient points on DeBart Despain's, L. E. Despain's,
,A1\ a J. Butler's and Clarence L. Giles' property." The South Despain Ditch property owners in

turn did "g-rant, bargain, sell and convey unto party of the first part [Salt Lake City; the riLiht io

the use of the primar,. waters aforementioned during the winter or pon-irrigation seasonfrom

October 1st to Apnl 1st of the following year, excepting therefrom a culinary reserve of 7,500

gallons per day which is to be delivered into said pipe system during such winter or non-

irrigation season . . " George F. and Prudence B. Despain were among, the South Despain

Ditch users that sieved the described 1934 Contract.

1 2. A true, correct and complete copy of the described 1934 Contract between the

owners of lands served by the South Despain Ditch and Salt Lake City is attached to this Petition

as Exhibit A.

1 3. The described 1934 Contract, Exhibit A, is binding upon the successors of George

F. And Prudence B. Despair. From and after the execution of the 1934 Contract, all of the

winter portion of the South Despain Ditch right has been diverted down the Murray Penstock,

and all of the winter portion of the South Despain Ditch right has been used by Salt Lake City,

excepting only that portion of the 7.500 gpd delivered by Salt Lake City to the South Despain

Ditch users and consumed by those users.

1 4. The water saved by the diversion through the penstock around a losing portion of

the Little Cottonwood Creek stream bed, as in part described in the 1934 Contract, Exhibit A,

was appropriated by Salt Lake City, Water Right Number 57-93, Application to Appropriate

N umber A 1 1437. Certificate of Appropriation Number 1 1437.

4
 SANDY CITY INTERESTS IN
SOUTH DESPAIN DITCH WATER RIGHTS

1 5. At the time of the Little Cottonwood Morse Decree, the owners of lands that were

served by the South Despain Ditch were: George F. and Prudence B. Despain, with

approximately 15.75 acres; DeBart and Bertha K. Despain, with approximately 10.25 acres

Lewis E. and Annie Butler Despain, with approximately 29.75 acres; and Frank P. Despain with

approximately 19.5 acres. The .25 cfs primary right decreed to the South Despain Ditch in the

Little Cottonwood Creek Morse Decree was not sufficient to fully irrigate all of this acreage. It

is not clear what portions of the primary South Despain Ditch right a' ffirmed by the Little

Cottonwood Morse Decree were appurtenant to each of these portions of the South Despain

Ditch lands.

1 6. in 1927, 4.1 acres of land owned by George F. and Prudence B.

Despain and potentially served by the South Despain Ditch, together with any appurtenant water

rights, were deeded to Sandy City. When Sandy City deeded this same land to Saunders and

Sweeney, Inc. in 1977, Sandy City expressly reser-ved all appurtenant water rights.

1 7. In 1939, George F. and Prudence B. Despain deeded approximately 1 1 .61 acres of

l and that may have been served by the South Despain Ditch to Beryl Despain Benson and

Genevie Despain. Beryl Despain Benson and Genevie Despain subsequently deeded this land to

Harold W. and Vcma D. Bentley. The described deeds were silent as to water rights, and

transferred only appurtenant water rights being- used on the deeded land at the time of the

transfer. Such appurtenant water rights did not include winter water being used by Salt Lake

City pursuant to the 1934 Contract, Exhibit A.

In 1963, Harold W. Bentley filed Change Application Number a-4175 to change

the nature of use of. and the point of diversion of. a portion of Harold W. and Verna D. Bentley's
claimed share of the South Despair Ditch primary night. Certificate Number A-702 was issued

on this change by the Utah State Engineer. Certificate Number A-702 does not accurately reflect

that portion of the South Despain Ditch right that `.gas in fact deeded to Harold 3M and Verna D.

Bentley.

1 9. In 1974, the Bentleys agreed to cons es 11.61 acres of land (that had been a

portion of the George F. and Prudence B. Despair lands that may have been served by the South

Despain Ditch at the time of the Little Cottonwood Morse Decree) to Saunders and Sweeney,

Inc., together with any appurtenant water rights. Such appurtenant water rights did not include

winter water being used by Salt Lake City pursuant to the 1934 Contract, Exhibit A.

20. In 1977, Harold W. Bentley and Saunders and Sweeney, Inc. agreed to sell to

Sandy City any and all rights of Bentley and Saunders and Sweeney, Inc. in the primary South

Despain Ditch right as affirmed by the Little Cottonwood Morse Decree, including those rights

represented by Change Application Number a-4178, Certificate Number A-702, Attached as

Exhibit B is a true, correct and complete copy of the described Agreement.

21 . The Agreement, Exhibit B, was recorded at the Salt Lake County Recorder's

Office as Entry Number 2398108 Book 4438, Pitg., 178, and the Sandy City Recorder's Office.

The water right represented by Change Application Number a-4178, Certificate

N umber A-702, was assigned the Water Right Number of 57-7300 by the Utah State Engineer.

Ender the express language of paragraph 5. of the Agreement. Exhibit B. payment

was to be made upon execution of the Agreement, and a deed was to be executed upon payment.

I n short. the deed was described as being executed at the time of execution of the Agreement.

24. The Deed to Sandy City called for by the Agreement, Exhibit B. was in fact

executed and delivered at the time of execution of the Agreement. as described in th c. . ALTeomerit.

6
Attacked as Exhibit Cis a true, correct and complete copy of the Deed. The Deed, Exhibit C,

effectively conveyed all interests of the Bentleys and Saunders and Sweeney Inc. in or to that

portion of the South Despair', Ditch primary right that would otherwise have been appui-tenant to

the 1 1.61 acres conveyed by the Bentleys to Saunders and Sweeney, inc.(a portion of the lands

that had belonged to George F. and Prudence B Despain at the time of the Little Cottonwood

M orse Decree), including any interest of the Bentleys and Saunders and Sweeney, Inc., in or to

W ater Right Number 57-7800.

The Deed, Exhibit C. was not recorded at the Salt Lake County Recorder's Office

until 2004, but it was recorded at the Sandy City Recorder's office shortly after the Deed was

d elivered to Sandy City, and it was available to the public upon recording.

26. All would-be purchasers of any portion of the South Despain Ditch primary right,

ineludinG Water Right Number 57-7800, are, as a matter of law, charged with knowledge of the

contents of the Agreement. Exhibit B, and also knowledge of anything that should have been

learned by inspection of the land and reasonably diligent inquiry. including reasonably diligent

i nquiry that should have been prompted by the contents of the Agreement, Exhibit B. Such

reasonably diligent inquiry would have revealed the fact that the winter water. excepting 7,500

gpd was being used by Salt Lake City under the 1934 Agreement, Exhibit A. Such reasonably

diligent inquiry would have revealed the Deed. Exhibit C, and Sandy City's ownership of all

interests of the Bentleys and Saunders and Sweeney Inc. in or to that portion of the South

Despain Ditch right that would otherwise have been appurtenant to the 1 1 .61 acres conveyed to

Saunders and Sweeney. Inc., including any interest of the Bentleys and Saunders and Sweeney,

Inc in or to Water Right Number 57-7500.

 RESPONDENTS' ERRONEOUS CLAIMS TO
SOUTH DESPAIN DITCH WATER RIGHTS

The 1 1.61 acres (a portion of the lands potentially served by the South Despain

Ditch that had belonged to Gicorhe F. and Prudence B. Despain as of the thine of the Little
were
Cottonwood Morse Decree) conveyed to Saunders and Sweeney, Inc. as described above,

subdivided by Saunders and Sweeney, Inc., or its successors after 1977, One of those lots, Lot

title
31, was eventually purchased by Lynn Christensen Biddulph. The deeds in the chain of land

from Saunders and Sweeney. Inc. to the lot owners, and eventually to Lynn Christensen

Biddulph with respect to Lot 31 , were silent as to water rights. Those deeds could not have

carried any appurtenant water rights from Saunders and Sweeney, Inc., as Saunders and

Sweeney, Inc. had previously conveyed to Sandy City all right, title and interest in and to water

rights that would otherwise have been appurtenant to those lands. Moreover, those deeds were

silent as to water rights, and could have conveyed only appurtenant water rights belonging to the

grantors that were being used on the lands transferred at the time of transfer. In particular, little

or no Little Cottonwood Creek water was being used on Lot 31 at the time it was purchased by

Lynn Christensen Biddulph. When Sandy City agreed to provide Sandy City water service to

Lot 31, it was with the agreement of Lynn Christensen Biddulph that Biddulph would sell any

water Tights associated with Lot 31 to Sandy City. No water rights were ever offered to Sandy

City by Lynn Christensen Biddulph.

23. The Respondents erroneously claim that Lynn Christensen Biddulph conveyed

i nterests in `Nate': Right Number 57-7600 to them. The Respondents have now filed change
applications to change the point of diversion and place of use of the water di,;erted under Water

Right Number 57-7±00 to the Albion Basin. Petitioners and others have protested those changes.

The interests of Petitioners, Respondents, Little Cottonwood Creek water users,

and the State Engineer will be best served by an interlocutory' adiudication of the tide to those

portions of the South Despain Ditch primary water right in question in advance of the State

Engineer taking any action on the change applications filed by the Respondents.

30. The interests of Petitioners, Respondents, Little Cottonwood Creek_ water users,

and the State Engineer will be best served by an interlocutory adjudication of the title to those

potions of the South Despain Ditch primary water right in question in advance of the general

adjudication.

WHEREFORE, Petitioners pray for an interlocutory order as follovvs:

Declaring and confirming that Salt Lake City has the right to divert all of the

primary right of the South Despain Ditch as described in the Little Cottonwood Morse Decree

.25 cfs, from October 1 to April 1, into the Murray City Penstock and use all of the described

winter water, excepting only 7,500 gpd to be delivered oft the Murray Penstock as described in

the 1934 Contract, Exhibit A; and

2. Declaring and confirming that Sandy City has all right, title and interest in and to

all of that portion of the South Despain Ditch primary night that belonged to George F. and

P rudence B. Despain at the time of the Little Cottonwood Morse Decree, less and excepting only

that portion of the right belonging to Salt Lake City as described above; and

3. Declaring and confimiing that Respondents, and all claiming through them, have

no right, title or interest in or to any portion of the South Despain Ditch primary right that
 Morse
be:10M27ed to Ge0Fc'e F. and Prudence B. Despain at the time of the Little Cottonwood

Decree: and
tino this
4. Arvardino Petitioners their costs incurred in bril-121r19: arid prosecu

Petition: and

Granting Pet loners such other relief as may be just and proper.

DATED this 3 day of i Line, 2005.

SNOW, CHRISTyNSEN M5-IN EAU

n E. Draney
Scott H. Martin
Attorneys for Petitioner Salt IS e City

yIABEY WRIGHT, LLC

B
in H. Mabey \77-,
David C. Wright, LLC
Attorneys for Petitioner Sandy City

:4 ton '4 `-,[

Exhibit A
 AGREEMEN T.

TRIS AGREEME1T Entered into this 8th day of August,

corporation, party
1934, by an('). betaveen SALT LY' 0111, a municipal
ANNIS BUTLER LESPAIN, his
of the first part, and L. E. DESPAIN and
wife; GEORGE F. DESPAIU
wife; ILVL J. BULLER and ANNA LAURA BUTLER, his
and BERTHA E. LESP .IN
and ?BUKKE B. DESPLIN, his wife; 0e BLI DESPAIN
SUE GTUES, nis wife; parties
his wife; and CLABENCE L. GILES anti LAUF.A

of the second part, WITNESSETH:

the
THAI WEEPJEAS, the parties of the second part are

v,lood Creek, Salt Lake

owners of primaly water rights in Little Ootton
the total primary rights
County, and said primary 77ater rights tomprise
certain decree of the Third
decreed to the South Despain Ditch in that
the Honorable C. W. Morse,
Judicial District Court of Ut -it, Eigned by

Judge, on June 16th, 1910.

ous of
AND WHBEIAS, the party of the first part is desir

primaly raters during the

acquiring a portion of the above mentioned

vinter or non—irrigation season.

and the
NOV', THEREFORE, in consideration of the premises

first parl, hereby agrees to

agreemeh s herein contained, party of the
for the conveyance of the primary
construct and maintain a main pipe line
Power Pipe Line at a point
raters above mentioned from the Murray City
r of Section 12, T. 3 S.,
near where snid pipe line crosses the cente
Despain Ditch, at a point near the
R. 1 5., S. L. B. & M., to the South
12 above mentioned, and to construct
east line of the N. W. 1/4 of Section
pipe, said branch line to be
a br-nch pipe line of first grade galvanized
 g westerly from
main ained by the parties of the second pail, runnin
ient location near the residence
the pipe line above described to a conven

of Geo. F. Despair) and wfil provide service pipes from said branch line
L. E. Despain's, Alva J.
to convenient points on De Bart Despain's,
will provide an outlet at
Butler's end Clarence L. Giles' property and
ient size to discharge
the crossing-, of the North Despair Ditch of suffic
by L. F. Despair; and further-
that portion of the Frimary rater nor owned
above mentioned branch
more a metered service pipe will be laid from the

line to a point on L. Ilaxfield's property -which point will be located as

t ditch is located.
near to the house on said property as the presen
install a
IT IS FURTHER AGREED that Salt Lake City is to

Power Pipe Line and the North

meter in the pipe system between the Murray
primnry waters into said pipe
Despain Ditch and will deliver the decreed
sibility for the dis-
system as measured through said meter and the respon
the second part shall rest with
tribution of the water among the parties of

the parties of the second part.

IT IS FURTHER AGREED TiifIT permission is hereby granted to

each of the parties of the

Salt Lake City to enter upon the premises of
to maintain the main pipe
second part to construct the pipe system and
grant Unto Salt Lake City
line and said parties of the second part hereby
of said main pipe line
an easement for the construction and maintenance
to the lend traversed by
and reserve unto themselves the surface rights

said pipe line.

 n, sell
Said sal Lies of the second part hereby Erant, bargai

to the use of the

and convey nnto party of the first part the right

or non-irrigation season
primary waters aforementioned during the winter

year, excepting therefrom

from October 1st to April 1st of the following

is to be delivered into
a culinagiy reserve of 7,500 gallons per day which

ion season, together with

said pipe system during such winter or non-irthat
to allow to
500 g,,,l -lons per day which the parties of the second part agree

E. laxfield, his successors

flow through the branch line for delivery to L.

assigns,

IN WITNESS WHEREOF, the parties hereto have hereunto set their

n.
hands and seels the day and year first above Tritte

S 7 A L SALT LAKE C117,

By Louis Marcus
Ethel Macdonald Mayor
City Recorder.

L, K, Despair Annie Butler Desnain

Anna Laura Butler

Alva J. Butler

George F. Desnain Prudence F. remain

De Bart Despain Bertha K, Despair

Clarence L. Giles Laura Sue Giles

Parties of the Second 5arL.

STATE OF UTAH
( SS.
COUNTY OF SALT LI=K7, )

On the 8th day of Aug., 1954, personally appeared before

duly sworn, did say
me Louis Marcus and Ethel Macdonald, who, being by me
tively, of Salt Lake City,
that they are the P.Aayor and City Recorder, respec
the foregoing instrument
and that the name of Salt L,ke City was attached to
rsigned by Ethel Macdonald
by Louis Marcus as Mayor and signed by him and counte
 Com-
a resolution of the Board of
as City Recorder, by authority of Aug. , A. L. 1954, and
the 8th day of
missioners of Salt Lake City on uted the
to me that said corporation exec
the said persons acknowledged
same.
Frank A_T Shields
Notary Bublic, residing at
Salt Lake City, Utah.

S EAL
commission expires Feb. 14, 1936

STATE OF UTAH
( SS.
COUNTY OF SALT LL )

nersonlly appeared
On the 16th day of July, 1954,
Butl er Desp ain, his wife; Alva J. Butler,
before me L. E. Despain, Annie Despain,
George F. Despain and Prudence B.
Anna Laura Butler, his wife; rume nt, who duly
of the foregoing inst
his wife; some of the signers .
uted the same
acknowledged to me that they exec

A T Laura Sue Giles

Notary Public, residing at
My commission exeires
Salt Lake City, Utah.
September 4, 1955

STATE OF UTAH
( SS.
COUN TY OF SJJX LAKE )

personally appeared
On the 18th day of July, 1934,
S Laura Sue Giles, his wife, some of the
before me CLARENCE L. GILE and that
rument, who duly acknowledged to me
signers of the foregoing inst
they executed the same.
L, E. Haynes
Notary Public, residing at
Salt Lake City, Utah.

S E A L

1938
My commission expires March 12,
 )
STATE OF CALIFORNIA
( SS.
courY OF LOS ANGELES )

lly appeared
ly, 1954, person
On the 20 day of Ju Lespain, hi s Ti=e, some
re rye De Ba rt De sp ain and Bertha K. o du ly acImonledged
befo ment, wh
e si gn er s of th e foregoing instru
of th
e,-uted the same,
to ac that they ex
H. E. Nightingale
ng at
Notary Public, residi
fo rn ia
Los Angeles, Cali

S E L

res July 10, 1938

My connission expi
Exhibit B
 R=rded 4.4
ERif..L:_z____K7)
R t4Inst al
. _ • .‘. 7.1,-rgLter

AG *EMENT OF SALZ CEE "

ZSTi.1_
is made'in Salt Lake County,
This Agreement of Sale
/3:- day Of January 1977, by .and between
Stateof'Dtah,*thia,./
, a Utah Corporation,
szamzy,and SAUNDERS7SWELNEY, INC.
:
y City Cox Poration; as0tah municipality as
as Sellers', and Sand

• :Buyer,-

WITIESSE-TE•I '
resently the owner and •
jzty:_i!-Tt.. .S.A.TIOLD W. BEETLEY.im_p
whose point of diversion
of a certain water right
contract vendor
of Utah, more,particu-
Salt Lake County, State
is located within
_
larlY,A5 1-1?q4a
.• • .
awarded te,the:South Desptin
"1/4 of the .25 CFS,
tch . in the Litt le Cottonwood Decree, Case No.
Di
lling .0625;CFS as certi-
4802, June 16, 1910 equa the State Engineer, Certi-
ted by the Offi ce of
fica
irrigation, stock-watering
ficate No. A-702, for
use , the point of divertion is located
and domestic
E 770 ft..from.the W. 1/4 corner,'
north.242 ft_
Section 12, T3S, R1E, SL8W4."
ract
,:aptah Corporation is. the cont
SAUNDERS-.SWEMSEY, rNC.
ther as. Sellers
ain water rights, and toge
vendee of. these. cert
oration, who
the.same,.ts,Sapdy City: Corp
they, desire. to sell
the terms and condi-
'said water right, upon
desires to purchase
price herein set forth.
tions, and at the
mutually agreed as follows:
THEREFORE, they have
consi-
"Ten Dollars and other valuable
1. That Buyer, for
es
h is herebv-arknowledged; agre
deration,. the receipt of whic
abOve.
water right as.described
to purchase said
rs of
esent that they are the owne
2. That Sellers repr
do not warrant title
d water right, although
the above describe
right to sell the same.
esent that they have the
thereto, and repr
the continued
shall have the right to
3. That Sellers
, irrigation and stock-water-
r right for domestic
use of said wate
al usage, not to exceed
ordance with its historic
ing uses in..acc
charge, and shall continue
usage shall be without
.0625 CFS,'such
r -is made available,
source of culinary wate
until as alternative
r shall. cease..
.Seller's use of this wate
at which tim-
a small irri-
shall have the right to fill
4. That Seller
Ditch without
waters of the South Jespain
gation pond from the
 r
•r
•

-2-

charge:„ such use may continue until the waters of the South

Despain Ditch have been, enclosedwi. thin,a pipeline system and

.
is no longer available for such usage.

5. PaymF.nts shall be tendered upon the execution of

this agre. mgeut 'anci the deed to the above cl artbed water right

shall be deliv eci upartrecalpt pnrmem-bss herein provided.

' IN WITNESS WHEREOF, these parties have hereunto set, their

• . ,
•
hand on the day and year first above vritten.

)
HAROLD W. BENTLX, Seder

sAuNDE _

syc

SANDY cITY.pgpORATION, Buyer

By:
ATTEV:4* ut . t4ayor

Arthur Hunter. City: Recorder.

G4T Dr4 GC171,ximq
Exhibit C
 9040.
04/21/2004 09:39 4, FEE
Pock —.8976 Rg - 12B9-1259
Please return to: G ARY W. OTT
.)
Dianne H. Aubrey, MMC RECORDER, SALT LAKE COUNTY, UTAH
Sandy City Recorder SANDY CITY
10000 Centennial Parkway 10000 CENTENNIAL PARY,WAT
SANDY UT 84070
Sandy, Utah 84070 QUIT CLAIM DEED BY: 230, DEPUTY - WI 2 P.

-
Sandy, Utah, and SAUNDERS
HAROLD W. BENTLEY, of
, hereby
Lake City, Utah, Grantors
SWEENEY, INC. , of Salt
, Grantee,
Corporation, Sandy, Utah
Quit-Claim to Sandy City
consideration,
ars and other valuable
for the sum of Ten Doll
diversion
water right, the point of
the following described
of Utah, to-wit:
Salt Lake County, State
of which is located in
ded to the South Despain
"1/4 of the .25 CFS, awar
le Cott onwo od Decree, Case No.
Ditch in the Litt
llin g .0623 CBS as certi-
4802, June 16, 1910 equa i-
the State Engineer, Cert
ficated by the office of
No. A-70 2, for irri gati on, stock-watering
ficate
t of diversion is located
and domestic use, the poin
770 ft. from the W. 1/4 Corner,
north 242 ft. E
SLB& M.
Section 12, T3S, R1E,

DATED this day of November, 1976.

z'1 )1 f= L
HAROLD W. BENTLEY, Gravtor

STATE OF UTAH
) ss.
County of Salt Lake )

personally appeared
On the dday of November, 1976,
e instrument
LEY, the signer of the abov
before me HAROLD W. BENT
same
me that he executed the
who duly acknowledged to

M y Commission Expires:

(?2,9

MICROFILMED
 -2-

STATE OF UTAH
ss.
County of Salt Lake )
/77
/ 1
72
On the day of -td-o-veR,ber, 1_5'76, personally appeared

before me Z M
)
who being by me duly sworn did say that he is the /`/^,-s--<,-/Gtr-7

of SAUNDERS-SWEENEY, INC., and that

on by autho-
said instrument was signed in behalf of said corporati

rity of its By-Laws, and said

same.
acknowledged to me that said corporation executed the
' '

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.
4'
: 01 .-SA'S'IP ' is
.6 412>'Ta
7-----7 .
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4.-v;ic 4R,t41,486o},sion Expires: NOTAR PUBLIC, residing in

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M ICROFILMED
Exhibit 5
SHAWN E. I/RANEY (A4026)
SCOTT H. MARTEN (A7750)
SNOW,CHRISTENSEN & MARTEN/EAU
10 Exchange Place, Eleventh Floor
Salt Lake City. Utah 841 1 1
Telephone: (801)521-9000
Telecopy: (801 )363-0400
JOHN H. MABEY,JR.(A4625)
DAVID C. WRIGHT (A5566)
M ABEY & WRIGI IT, LLC
265 East 100 South, 11300
Salt Lake City, Utah 8411 1
Telephone:(801 ) 359-3663
Telecopy:(801) 359-2320

CITRISTOPIIER E. BRAMILALL (A3996) BRYCE D. MCEUEN (A2182)

Assistant City Attorney
SALT LAKE CITY, LAW DEPARTMENT
451 South State Street, Room 505
Salt Lake City, Utah 84111
Telephone: (801) 535-7788
A ssistant City Attorney
SANDY CITY CORPORATION
10000 Centennial Parkway
Sandy, Utah 84070
Telephone: (801) 568-7170

Attorneys for Petitioner Salt Lake City Attorneys for Petitioner Sandy City

I N THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

SALT LAKE DEPARTMENT,STATE OF UTAII

I N THE MATTER OE TIIE GENERAL

DETERMINATION OF THE RIGHTS TO
THE USE OF ALL THE WATER,BOTH
SURFACE AND UNDERGROUND, WITHIN MEMORANDUM IN SUPPORT OF
THE DRAINAGE AREA OF UTAH LAKE MOTION TO CONSOLIDATE
AND JORDAN RIVER IN L SALT
LAKE, DAVIS, SUMMIT, WASATCH,
SANPETE AND JUAB COUNTIES; Consolidated Cases:
Case No. 360057298 (Subease No. 57-General)
SALT LAKE CITY CORPORATION and Case No. 050911311
SANDY CITY, Utah Municipal Corporations,

Petitioners, Judge Timothy R. Hanson

V S. LITTLE COTTONWOOD CREEK

AREA 57
KEVIN TOLTON, M.D.. MARK C. HAIK,
JUDITH MAACK, WILLIAM S. HOGE, Utah
residents, BUTLER MANAGEMENT
GROUP. a Utah Limited Partnership, and
M ARVLN A. MELVILLE, a Utah resident,
individually and as Trustee of the MARVIN A.
MELVILLE. TRUST, a Utah trust.

Respondents.
 INTRODUCTION

These are two cases based on substantially identical facts. substantially identical

questions of law and nearly identical parties. Petitioners Sandy City and Salt Lake City filed

their joint petition for interlocutory decree in the Little Cottonwood Creek Subcase of the Utah

Lake/Jordan River Water Right General Adjudication pursuant to Utah Code Ann. § 73-4-24 on

J une 3. 2005. The case number is 360057298. The Respondents, in part reacting to the

Petitioners. joint petition, filed their own separate action on June 24, 2005. It was assigned to

J udge Pettier. The case number is 05091 1311. A copy of the Complaint is attached hereto at

Tab A.

Under Rule 42(a), a Motion to Consolidate is brought before the judge assigned to the

first case filed. Likewise, should the Motion be granted, the cases are consolidated into the first

case filed. Petitioners request this relief.

ARGUMENT

POINT 1

UNDER RULE 42(a), THESE IDENTICAL ACTIONS SHOULD BE

CONSOLIDATED INTO THE CASE BEFORE JUDGE LIANSON

Rule 42(a) reads:

Consolidation. When actions involving a common question oflaw or

fact are pending before the Court, it may order a joint hearing or trial
of any or all the matters in issue in the actions; it may order all the
actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.

(a)(1) A motion to consolidate cases shall be heard by the judge

assigned to the first case filed. Notice of a motion to consolidate
cases shall be given to all parties in each case. The order denying or
granting the motion shall be filed in each case.

2
 (a)(2) If a motion to consolidate is granted, the case number of the
first case filed shall be used for all subsequent papers and the case
shall be heard by the judge assigned to the first case. The presiding
judge may assign the case to another judge for good cause.

Utah R .Civ. P. 42(a); see, e.g., Lignell r. Berg, 593 P.2d 800, 806 (Utah 1979)(Trial court is free

to consolidate cases under Rule 42(a) as it sees fit subject only to an abuse of discretion standard).

Both cases involve the substantially identical issue of competing claims to title to a portion

of a decreed Little Cottonwood Creek water right. Petitioners section 24 joint petition reads:

This Petition seeks the adjudication of conflicting claims to the ownership ofcertain
Little Cottonwood Creek water rights [Water Right Number 57-7800, as a portion of
the South Despain Ditch decreed right]. Petitioners and Respondents claim through
a common root of title, but the title of Petitioners is superior, and the Respondents
have no

See, Joint Petition for interlocutory Decree, S. Likewise, Plaintiffs.(Respondents) Complaint

reads:

This action concerns title to and the right to possession of a decreed Little
Cottonwood Creek water right [Water Right Number 57-7800 from the South
Despain Ditch water right]... .

See, Complaint, 4.

The facts are substantially the same. The applicable law is substantially same. As such, this

case should be consolidated into "the first case filed" which is the general adjudication subcase

before Judge Hanson.

CONCLUSION

Based on the foregoing, petitioners respectfully request this Court consolidate the Judge

Pettier action into Case No. 360057298, Subcase 57-General.

Respectfully submitted this day of July, 2005.

 SNOW,CHRISTENSEN & MARTINEAU

By:
Shawn E. Draney
Scott II. Martin
Attorneys for Petitioner Salt Lake CitN

M ABEY &'WRIGHT, LLC

By:
John H. Mabee
David C. Wri2:ht
Attorneys ibr Petitioner Sandy City
N , r)()H5 7 n nsolici21 pd

4
Exhibit 6
Ronald 0. Russell, Esq.(4134)
Daniel A. Jensen, Esq.(5296)
PARR WADDO1IPS BROWN GEE &„ LOVELESS
Attorneys for Respondents
1 85 South State Street, Suite 1300
Post Office Box 1 1019
Salt Lake City, Utah 84147-0019
Telephone: (801) 532-7840

IN THE THIRD JUDICIAL DISTRICT couRT FOR SA61 LAKE COUNTY

STATE OF UTAH

IN 'fFIE MATTER OF THE GENERAL

DETERMINATION O2RICCTST )THI
USE OF WATER,BOTH SURFACE AND
UNDERGROUND, WETHINT TEIE
DRAINAGE AREA OF THE UTAH I,AKE
AND .10RDAN RIVER IN IT SALT
LAKE, DAVIS, SUMMIT, WASATCH,
SANPETE, AND JEAB COUNTIES IN MEMORANDUM OF POINTS AND
UTAH _AtITHORITIES IN OPPOSFUION TO
MOTION TO CONSOLIDATE
LITTLE COTTONWOOD CREEK, AREA
57

SAI.„T LAKE CITY CORPORATION; and.

SANDY CITY,

Petitioners,

VS.
Civil No. 360057298CV
KEVIN TOLTON, M.D.; MARK C. HAIK; Judge Timothy R. Hanson
JUDITH MAJ\CK,\VIL:LIAM S.1100E;
BUTLER_ MANAGEMENT caouP; and
MARVIN A. MELVILLE, individually and
as Trustee of the MARVIN A MELVILLE
TRUST, a Utah trust,

Respondents.
 Butler Management Group, Mark C. Haik, William S. Hoge, Judith Maack, Marvin A.

Melville, individually and as trustee of the Marvin A. Melville Trust, and Kevin 'folton

(hereinafter referred to collectively as "Respondents") respectfully submit the following

memorandum of points and authorities in opposition to the motion to consolidate filed by Salt

Lake City and Sandy City.

I. INTRODUCTION

Respondents are the record title owners of a decreed right to divert and use water from

Little Cottonwood Canyon, sometimes known as water right number 57-7800 (the "Water

Right"), Respondents purchased the Water Right on October 24, 2003 and promptly recorded

the deed with the Salt Lake County Recorder on October 28, 2003. Sandy City recently claimed

to he the owner of the same Water Right by virtue of a quitclaim deed dated November 22. 1976,

but not recorded until April 21, 2004. During the 28 years prior to such recording, Sandy City

never asserted ownership of the Water Right and has taken various actions, including the filing

of written documents, acknowledging no ownership of the Water Right and confirming instead

ownership by Respondents' predecessors in title.

As a result of the ownership claim belatedly asserted by Sandy City, Respondents filed a

complaint to quiet title against Sandy City's purported interest. That action is entitled Mark C.

1-talk, et al. v. Sandy City. Civil No. 05091131 1 WR,and was assigned to Judge Sandra N. Peuler

(the "Quiet Title Lawsuit"). file issues in the Quiet Title Lawsuit are solely between

Respondents and Sandy City and concern only their competing claims to ownership of the Water
Right. In the Quiet Title Lawsuit, Respondents specifically acknowledge an interest held by Salt

Lake City and do not contest Salt Lake City's rights.

In a transparent effort to delay the resolution of the simple title dispute between

Respondents and Sandy City, Salt Lake City has teamed with Sandy City to file a joint petition

for interlocutory decree (the "Joint Petition") within the Utah Lake and Jordan River general

adjudication. That petition is entitled Salt Lake City Corporation, et al. v. Kevin 1 olton, et al.

and was filed with Civil No. 360057298CV (the "General Adjudication").

The Utah State Engineer has filed a motion to dismiss the Joint Petition in the General

Adjudication. The state engineer's motion is well-taken and should be granted. Accordingly, the

court should not grant a motion to consolidate the Quiet Title Lawsuit into a proceeding that will

be dismissed.

II. POINTS AND AUTHORITIES

A. The State Engineer's Motion to Dismiss the Joint Petition Is Well-Taken and Should Be
Granted.

The state engineer has moved this court to dismiss the joint Petition, which dismissal is

fully supported by Respondents. The arguments in support of the dismissal of the Joint Petition

are stated in detail in the Slate Engineer's Memorandum of Points arid Authorities in Support of

Motion to Dismiss joint Petition for Interlocutory Decree. Rather than recite those arguments,

Respondents adopt them and urge the court to grant the motion to dismiss for the reasons stated

in the state engineer's memorandum. Simply stated, a section-24 proceeding is not justified in

this instance. The title dispute between Sandy City and Respondents can be accomplished more
readily and expeditiously in a private quiet title action. Salt Lake City and Sandy City should not

he permitted to use the tactic of delaying the resolution of the private title dispute between

Respondents and Sandy City by making it a part of the General Adjudication of all of the Utah

Lake and Jordan River water rights.

B. The Duict Title Action Should Not Be Consolidated into a Proceeding That Hill Be
Dismissed.

Under Rule 42(a) of the Utah Rules of Civil Procedure, the court may consolidate actions

involving a common question of law or fact. The first prerequisite for consolidation, however, is

the existence of two pending actions. Upon the dismissal of the Joint Petition tbr the reasons

submitted by the state engineer, only the Quiet Title Lawsuit will remain. Consequently, the

motion for consolidation should be denied.

III. CONCLUSION

For the foregoing reasons, Respondents respectfully submit that the Joint Petition filed in

the General Adjudication should he dismissed and the motion to consolidate denied.

DATED this 'day of September,. 2005.

PARR. WADI-5013PS BRA_. & LOVELESS

/7
(
1

B y:
Ronalc G Russell, Esq.
Attorneys for Respondents

4
 CERTIFICATE OF SERVICE

hereby certify that on the I September. 2005 a true and correct copy of the
foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
MOTION TO CONSOLIDATE was mailed, postage prepaid, to:

Shawn E. Draney, Esq.

Scott H. Martin, Esq.
SNOW CIIRIS & IVE'\RTTNEAU
10 Exchange Place, Suite 1100
Salt Lake City, Utah 84111

J ohn 1-f. Mabey, Jr., Esq.

David C. Wright, Esq.
MABLY & WRIGHT
265 East 100 South, Suite 300
Salt Lake City, Utah 84111

Christopher E. Bramhall. Esq.

Assistant City Attorney
SALT LAKE CITY
451 South State Street, Room 505
Salt Lake City, Utah 841 1 1

Bryce D. McEtten, Esq.

Assistant City Attorney
SANDY CITY CORPORATION
10000 Centennial Parkway
Sandy, Utah 84070

Norman K. Johnson, Esq.

L. Ward Wagstaff, Esq.
Assistant Attorneys General
Mark L. Shurtleff, Esq.
UTAH N.1-TORNEY GENERAL
1 504 West North Temple, Suite 300
Salt Lake City, Utah 84116

Rona d 3. Russell, Esi.)

5
Exhibit 7
rt`

FILED DifiTRICT COURT

T hird Judicial District

M AY 2 3 2006
SAL.Yr) E COUNTY

NORMAN K. JOHNSON, No. 3816 D eputy Clorl,

L. WARD WAGSTAFF,No. 5554
Assistant Attorneys General
MARK L. SHURTLEFF,No. 4666
UTAH ATTORNEY GENERAL
Attorneys for the State Engineer
1594 West North Temple, Suite 300
Salt Lake City, Utah 84116
Telephone:(801) 538-7227

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY,UTAH

IN • THE MATTER OF THE GENERAL ORDER DISMISSING JOINT

DETERMINATION OF RIGHTS . TO THE USE OF PETITION FOR
WATER, 130TH SURFACE AND UNDERGROUND, INTERLOCUTORY DECREE
WITHIN THE DRAINAGE AREA OF THE UTAH LAKE AND
AND JORDAN RIVER IN UTAH,SALT LAKE,DAVIS, DENYING MOTION TO
SUMMIT, WASATCH, SANPETE, AND JUAB CONSOLIDATE
COUNTIES IN UTAH

Little Cottonwood Creek, Area 57

Civil No. 360057298

SALT LAKE CITY CORPORATION and SANDY CITY, (57-General)

P etitioners,

vs.

KEVIN TOLTON, MD., MARK C. HAM, JUDITH Judge Timothy R. Hanson

M AACK, WILLIAM S. HOGE, BUTLER
MANAGEMENT GROUP,and MARVIN A.MELVILLE,
individually and as Trustee ofthe MARVIN A MELVILLE
TRUST, a Utah trust,

Respondents.
 This matter came before the Court on December 19,2005,on Salt Lake City and Sandy City's

Motion to Consolidate and on the State Engineer's Motion to Dismiss Joint Petition. Salt Lake City was

represented by Shawn E, Draney, Scott H, Martin, and Christopher E. Bramhall. Sandy City was

represented by J ohn1-1, Mabey,Jr., David C. Wright, and Bryce D. McEuen. Kevin Tolton, Mark C.

Haik,Judith Maack,William S.Hog;Butler Management Group,and Marvin A.Melville,individually and

as trustee for the Marvin A. Melville Trust,(collectively "Tolton Group")were represented byRonald G.

• Russell and Daniel A. Jensen: . The State Engineer was represented by L. Ward Wagstaff.

Salt Lake City and Sandy City filed a Joint Petition for Interlocutory Decree (Joint Petition),

seeking resolution ofcertain water right title issues pursuant to section 73-4-24 ofthe Utah Code. The

Tolton Group filed an action to quiet title to water right number 57-7800,entitled Mark C. Haik, et al. v.

Sanely City, Civil No.050911311 WR,which was assigned to JUdgePeuler. Salt Lake City and Sandy

City(Petitioners)filed a Motion to Consolidate the two actions,which the Tolton Group opposed. The

State Engineer filed the Motion to Dismiss the Joint Petition,which Salt Lake City and Sandy.City opposed

and the Tolton Group supported. After the partieS filed the appropriate responsive memoranda,the Court

h eard arguments on both motions.

At the hearing,the Court informed the parties that thejudge assigned to hear the case is a personal

acquaintance ofl-ly Saunders and his family, who might be called as a witness ifthe case were to proceed.

Counsel informed the Court in writing that their clients have no concerns about having the assigned judge

hear the case,

2
 THE MOTION TO DISMISS THE JOINT PETITION

A district court has discretion to dismiss a petition filed pursuant to section 7374-24 ofthe Utah

Code. Mitchell v. Spanish Fork West Field Irrigation Co.,265 P.2d 10.16, 101.9(Utah 1954);see also

Murdock v. Springville Mun, Corp., 1999 UT 39, ill 28, 29,982 P.2d 65. Having considered the

parties' memoranda and arguments,the Court concludes that the Joint Petition is not a proper petition

under the general adjudication statutes under these circumstances. It is therefore ORDERED that the State

Engineer's motion is granted andthe Joint Petition is dismissed,for the reasons set forth by the State

:Engineer in its papers supporting the motion to dismiss and as argued at the hearing.

THE MOTION TO CONSOLIDATE

Having considered the parties' memoranda and arguments,the Court concludes that consolidation

ofthe case before Judge Peuler would cause rather than avoid unnecessary costs and delay,for the reasons

cited by the Tolton Group and the State Engineer in their memoranda and arguments. In addition,the

Court has dismissed the Joint Petition.It is therefore ORDERED that the Motion to Consolidate is denied.

Dated this (2 day of /1/( , 2006.

E Op C4;
"N• ,-"St

,
. •
DG TAj4b.r141,);'4 HANSON
(bird Tu a:q0et ,{hurt Judge