This action was brought by the defendant in error, Nash, to condemn a right of way so called, by enlarging a ditch for the conveying of water across the land of plaintiffs in error, for the purpose of bringing water from Fort Canyon creek, in the county and state of Utah, which is a stream of water flowing from the mountains near to the land of the defendant in error, and thus to irrigate his land.
The plaintiffs in error demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled, and the defendants then waived all time in which to answer the complaint, and elected to stand on the demurrer. Thereafter there was a default entered against the defendants, and each of them, for failing to answer, and the case was, under the practice in Utah, then tried and evidence heard on the complaint of the plaintiff, showing the material facts as stated in the complaint. The trial court found the facts as follows:
'That the plaintiff during all the times mentioned in said complaint, to wit, from the first day of January, 1902, down to the present time inclusive, was, has been, and now is the owner of, in possession of, and entitled to the possession of, the south half of the northwest quarter of section 24, in township 4 south of range 1, east of Salt Lake meridian, in Utah county, state of Utah.
'That Fort Canyon creek is a natural stream of water flowing from the mountains on the north of plaintiff's said land, in a southerly direction to and near to plaintiff's said land.
'That said land of plaintiff above described is arid land and will not produce without artificial irrigation, but that, with artificial irrigation, the same will produce abundantly of grain, vegetables, fruits, and hay.
'That the defendants own land lying north of and adjacent to plaintiff's said land, and said defendants have constructed and are maintaining and jointly own a water ditch which diverts a portion of the said waters of the said Fort Canyon creek on the west side of said creek (being the side on which the plaintiff's said land is situated), at a point about one mile north of plaintiff's said land, in section 13 of said township, down to a point within a hundred feet of plaintiff's said land, which said ditch is begun on the defendants' land and runs in a southerly direction over said defendants' land and onto and over the lands of the said defendants to said point about a hundred feet of plaintiff's said land.
'The plaintiff is the owner of, and entitled to the use of, sufficient of the remainder of the flow of the waters of the said Fort Canyon creek to irrigate his said land and that the irrigation of said land by the waters of said creek, and the uses of the said waters in the irrigation of the said lands of the defendant, is, under the laws of this state, declared to be, and the same is, a public use.
'That the said waters of said Fort Canyon creek cannot be brought upon the said plaintiff's said land by any other route except by and through the ditch of the defendants, owing to the canyon through which said ditch runs being such as to only be possible to build one ditch.
'That plaintiff has no other way of irrigating his said land except by the use of the waters of said Fort Canyon creek, and that unless plaintiff is allowed to enlarge the ditch of the defendants, and have a right of way through said ditch for the flow of the waters of said Fort Canyon creek, down to the plaintiff's said land, that said land of plaintiff will be valueless and the waters of said Fort Canyon creek will not be available for any useful purpose.
'That said ditch of defendants is a small ditch, about 18 inches wide and about 12 inches deep; that if the plaintiff is permitted to widen said ditch one foot more it will be sufficient in dimensions to carry plaintiff's said water, to which he is entitled, to his said land, and the same can and will be put to a beneficial and public use, in the irrigation of the soil on plaintiff's said land hereinbefore described.