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2016 09 26 - Motion For Partial Summary Judgment - Snow Martineau SLC PDF
2016 09 26 - Motion For Partial Summary Judgment - Snow Martineau SLC PDF
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
______________________________________________________________________________
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
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
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
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; 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
[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.)
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
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.
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.)
10. Specifically, SLC alleged that the “1934 Contract . . . is binding upon the
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
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
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
State Engineer, the district court dismissed the Joint Petition and denied the Motion to
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
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
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
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
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
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
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
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
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
8
to the terms of the 1934 Agreement, SLC would have persisted in seeking to have that issue
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
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
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.)
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
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
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.
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
13
Exhibit 1
T'f:IRD JUDICIAL DISTRICT COURT OP
UTAE, CAL: LAVE COtJPTY.
(Chancery Division.)
Plaintiff,
v.
Ste 0`011-2
Jonson, Ralph Jenkins, Will
iam James, Sr., William A. Jame
Jol:11 G. Johnson, David Jones, s, Jr„
SLC 0004
-5-
Matilda Young,
Defendants.
0000O0000
FINDINGS OF FACT.
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
Greenwood,
Biesinger,
.08
Van Valkenburg,'
Total, 2.29
i_Of the remaining part of the primary water, the difference
Tanner,
Richards,
Union:&
Walker,
' .' • '' ' ' ' ' -,..,--,,,,- -.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-
SLC 0008
the one side and column five on
is more surplus water than 64.30 second feet -in 'Said. Little
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
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-
less than one and one-half second feet measured at the head of
_
Cahoon & Maxfield, Union & Jordan and Walker ditches-seventy fiV
d ollars per month, payable quarter-ycarly in advance, Commencing
St_G- 001-1
-12-
6:-,thia:aCtiOnthail4AY
Cahoon
'
-13-
Richards, Cahoon & Maxfield, Union & Jordan and Walker ditches;
cr, until the further order 'of this court, to carry the decree
Par. 15. That no party to this action has held, under cla
SIX 0013
-14-
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
CONCLUSIONS OP LAW.
Par. 23. The plaintiff shall pay the Clerk's costs; each
party to this action shall pay his own costs, and no costs shall
Richards, Cahoon & Maxfield, Union & Jordan and Walker 'ditches
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.
- Prom
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
plead has elapsed, the proof of all which is now on file herein,
and every person, known and unknown, who claims any water in
Par.' 28. That in the year 1848 and in each year thereafter
until and including the year 1856, the water of said stream was:
ti-:c year .1856 all the primary water of said stream was appropriai-
d ecessors in interest, and the whole of such water then was, eve
since has been, and now is.; reasonably necessary for such uses
tc 94.79 second feet. The parties .to this action, with but
Greenwood,
B rady Number
Bissinger,
Van "Valkenhurg,
Names of Ditches.'
- Tanner,
Richards,
Walker,
/4.
SLC
-18-
sLc i
-19-
Surplus ditCYCnuMber:2Chas..a
feet, as'speCifiedin4aid:stateMein
_
surplus water until sal° first
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.
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-
all the primary water (except the primary water that goes to
t
h ereof) when considered as running and measured at the differen
less than one and one-half second feet measured at the head -of
to make one and one-half second feet of water at suCh - head, Sai
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
Cahoon & Maxfield, Union & Jordan and Walker ditches all its
Tanner 4/18
Richards 2/18
Walker 216
Par. 36. The plaintiff shall pay the Clerk's costs; each
party to this action shall pay his own costs, and no costs shall
R ichards, Cahoon & Maxfield, Union & Jordan and Talker ditches
SLC 0022
-23-
,
}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
vacated.
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
with their agents and, employes, are hereby enjoined from in any
"-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.
parties
his wife; and CLARENCE L. GILTS and LAURA SUE GILTS, his rife;
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
during the
acquiring a portion of the above mentioned primary miters
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
•
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
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
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
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
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
from October 1st to April lot of the following year, excepting therefrom
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.
hands and seals the day and year first above written.
911.1._p_m
By 1_, 11.3
211a1114nQJ
ti- 0 Mayor
City Recorder.
Annie Dutles in
lava J. Du lsi LmIr_DiAlQr
STATE OF UTAH
( SS.
COUNTY OF SALT LAKE )
SLC 0062
. .-
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)
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.
S AL
SLC 0063
5
STATE OF CALIFORNIA )
( SS.
COUNTY OF LOS ANGKLES )
E, F,t_ightingflaa
N otary Public, residing at
Los Angeles, California
S EAL
SLC 0064
Exhibit 3
WARRANTY DEED
July 18, 1934 between the Grantee, and Lewis B. Maxfield and
, 1989.
/-
Rt,LON T. JEFFS
STATE OF UTAH
: ss.
County of Salt Lake)
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)
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
500 gallons per day above mentioned. Furthermore, Salt Lake City shall be under
so used at pre-
their successors or assigns, shall pay for i11 of the water
July, 1934.
Lewis B. Maxfield
Emma A. Maxfield
WIrWESS
Rose E. Marks
By Louis Marc
Mayor.
S EAL
Macdonaad
City Recorder
Exhibit 4
SHAWN E. DRANEY (A4026) JOHN H. MABEY,JR.,(462.5).
SCOTT H. MARTIN (A7750) DAVID C. WRIGHT (5-566) :-
SNOW, CHRISTENSEN & MARTINEAU MABEY & WRIGHTALC__
10 Exchange Place, Eleventh Floor 265 East 100 South, 4300
Salt Lake City, Utah 8411 1 Salt Lake City, Utah 84111
Telephone: (801) 521-9000 Telephone:(801) 359-3663
Telecopy: (801) 363-0400 Telecopy:(801) 359-2320
Attorneys for Petitioner Salt Lake City Attorneys for Petitioner Sandy City
Respondents.
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
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
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 ).
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
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
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
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
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
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
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.
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.
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
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
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.
N umber A-702, was assigned the Water Right Number of 57-7300 by the Utah State Engineer.
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
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,
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
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.
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.
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
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.
n E. Draney
Scott H. Martin
Attorneys for Petitioner Salt IS e City
B
in H. Mabey \77-,
David C. Wright, LLC
Attorneys for Petitioner Sandy City
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 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
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
or non-irrigation season
primary waters aforementioned during the winter
is to be delivered into
a culinagiy reserve of 7,500 gallons per day which
assigns,
n.
hands and seels the day and year first above Tritte
By Louis Marcus
Ethel Macdonald Mayor
City Recorder.
STATE OF UTAH
( SS.
COUNTY OF SALT LI=K7, )
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
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
• :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
)
HAROLD W. BENTLX, Seder
sAuNDE _
syc
By:
ATTEV:4* ut . t4ayor
-
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,
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
on by autho-
said instrument was signed in behalf of said corporati
N
.
4'
: 01 .-SA'S'IP ' is
.6 412>'Ta
7-----7 .
,-7 02 ... .
4 '
( N'
M ICROFILMED
Exhibit 5
SHAWN E. I/RANEY (A4026) JOHN H. MABEY,JR.(A4625)
SCOTT H. MARTEN (A7750) DAVID C. WRIGHT (A5566)
SNOW,CHRISTENSEN & MARTEN/EAU M ABEY & WRIGI IT, LLC
10 Exchange Place, Eleventh Floor 265 East 100 South, 11300
Salt Lake City. Utah 841 1 1 Salt Lake City, Utah 8411 1
Telephone: (801)521-9000 Telephone:(801 ) 359-3663
Telecopy: (801 )363-0400 Telecopy:(801) 359-2320
Attorneys for Petitioner Salt Lake City Attorneys for Petitioner Sandy City
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
ARGUMENT
POINT 1
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
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
CONCLUSION
Based on the foregoing, petitioners respectfully request this Court consolidate the Judge
By:
Shawn E. Draney
Scott II. Martin
Attorneys for Petitioner Salt Lake CitN
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
STATE OF UTAH
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
memorandum of points and authorities in opposition to the motion to consolidate filed by Salt
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
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
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.
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
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
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.
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:
M AY 2 3 2006
SAL.Yr) E COUNTY
P etitioners,
vs.
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.
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
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
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.
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.
E Op C4;
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DG TAj4b.r141,);'4 HANSON
(bird Tu a:q0et ,{hurt Judge