Burtenshaw v. Bountiful Irr. Co

• Decision Date: 03 October 1936
• Docket Number: 5746
• Citation: 61 P.2d 312,90 Utah 196
• Court: Utah Supreme Court
• Parties: BURTENSHAW v. BOUNTIFUL IRR. CO

61 P.2d 312

90 Utah 196

BURTENSHAW v. BOUNTIFUL IRR. CO

No. 5746

Supreme Court of Utah

October 3, 1936

Appeal from District Court, Second District, Davis County; Lester A Wade, Judge.

Action by T. C. Burtenshaw against the Bountiful Irrigation Company. Judgment for plaintiff, and defendant appeals.

JUDGEMENT REVERSED, and cause remanded for a new trial.

Holmgren Anderson & Russell, of Salt Lake City, for appellant.

Rawlings & Wallace and Clarence Baird, all of Salt Lake City, for respondent.

FOLLAND Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON and MOFFAT JJ., WOLFE, Justice., concurring.

OPINION

FOLLAND, Justice.

This cause was commenced by plaintiff, a stockholder of defendant, a mutual irrigation company, to require defendant to make repairs in its irrigation ditch, to provide proper headgates, weirs, measuring devices, and equipment for the handling of the water, to diligently maintain and operate the system, to devise a more efficient and equitable method of rotation among the stockholders in the use of the water, and for damages because of alleged negligent or indiligent operation and maintenance of its distribution system over a period of fifteen years past. The case was tried to a jury and limited by the court to an action for damages during the four years prior to the filing of the complaint. The jury returned a verdict of $ 300 damages in favor of the plaintiff. From judgment entered on the verdict, defendant appeals.

We are met at the threshold with the question respecting the nature of the cause, whether it is a suit in equity or an action at law or a combined legal and equitable action. The prayer of the complaint undoubtedly asks for equitable relief as well as for damages. The appeal is from a judgment for money damages only. It is now contended by the defendant that the court should have considered the verdict as advisory only and should have made findings of fact, conclusions of law, and a decree covering not only the issue of damages but also the equitable issues. For the purpose of this case we do not enter into a consideration of this problem for the reason that plaintiff demanded a jury, the case was tried to the jury, verdict was rendered and judgment entered as a law action for damages. No objection was made at any time by defendant to the trial of the cause in the manner in which it was tried or to the entering of judgment on the verdict. As to these matters objection is made for the first time in this court. There has been no disposition of the equitable demands in the complaint, except that the judgment disposes of the case as one for damages only. Defendant did not ask for affirmative relief, and the plaintiff is not now complaining that his demand for equitable relief was not granted. The record discloses that during the progress of the trial the court undoubtedly had in mind that equitable issues might be determined at the trial, but at the time the case was submitted to the jury, the issues were strictly limited, as will hereafter appear. In view of the condition of the record, we do not see how the defendant can complain that equitable relief was neither granted nor expressly denied. Plaintiff has in effect abandoned all claim to the equitable relief prayed for in his complaint. The rule stated in Houston R. E. I. Co. v. Hechler, 47 Utah 215, 152 P. 726, 152 P. 726, and Naylor v. Jensen, 38 Utah 310, 113 P. 73, 75, is controlling. The court in the Naylor Case said:

"The whole conduct of the case and the proceedings had indicated that all of the parties to the action treated the trial to the jury as a complete trial of the issues, the same as such issues are usually tried and determined in law cases. This being so, we think the district court was right in holding that the parties by their conduct were concluded by the verdict, and could not again try the issues that had been submitted to and passed on by the jury. All of the issues of fact were peculiarly matters for the jury to pass on. The parties all seemed to recognize this fact, and hence did not avail themselves of the opportunity of simply submitting to the jury certain questions of fact, and have the jury answer such questions in accordance with their conclusions. Instead of this, all the issues were submitted to the jury in the usual way and a general verdict asked at their hands. While this may have been somewhat irregular, yet there is nothing made to appear why the trial of the issues in that way was not as fair for one as for the other of the parties, and appellant made no such claim in his motion for a new trial."

For purposes of review, on this appeal we shall test the complaint and proceedings as an action for damages not complicated by any equitable issues.

In the background of this case, is another wherein, in the year 1912, the Bountiful Irrigation Company sued plaintiff Burtenshaw and another to enjoin them from interfering with the distribution system of the company. A judgment was entered in the district court of Davis county enjoining the defendant from such interference and providing that the defendant Burtenshaw take his water on what is known as the "whole turn" method at a point commonly called "The Cave" and on the "half-turn" method at a point known as the "Chadwick Box." The decree further provided that the Bountiful Irrigation Company, plaintiff in that case and defendant here, "in the future is required to use reasonable diligence to maintain the said water system and everything connected therewith in a reasonably good condition, and state of efficiency, to the end that the water flowing in said system may be conserved and delivered to shareholders of said system with as little loss and inconvenience as is consistent with the condition and circumstances therewith connected."

The plaintiff pleaded in substance that the defendant had failed to observe the conditions of this decree in that it had failed and refused to keep its system in a reasonable state of repair and efficiency in the following respects: By permitting a great number of water users to cut, damage, and impair the banks of its said ditch at numerous points above where plaintiff is required to take his water, and also along the line of canal between the point where plaintiff takes his water from former users and where plaintiff finally places water upon his property, resulting in loss of water to plaintiff, and inefficiency in the handling of that which he receives; that at many points along said canal above where plaintiff finally takes his water therefrom, defendant has not placed proper headgates and facilities for diverting water, or weirs, or measuring equipment to measure or handle the same, resulting in loss of water to plaintiff and extra work on his part; by allowing the canal, headgates, and flumes connected therewith, to become clogged with weeds and debris which obstruct the flow of water, thereby impairing the efficient handling of water and resulting in loss to plaintiff; by not having or causing the water to be at the place where plaintiff was required to go to secure the same, thereby making it necessary for plaintiff on numerous occasions to go a long distance up said canal and to cut and remove numerous earthen dams to secure his water, resulting in loss of water and excessive work by him; by permitting the construction of a large concrete reservoir directly across the channel of said ditch, thereby obstructing the flow of water therein, compelling the water to back up and flow around said reservoir, thereby resulting in loss of water by seepage and otherwise, and causing extra work to plaintiff; by not keeping the ditch clean of rocks, boulders, trees, and debris of various sorts, by permitting the same to accumulate therein, resulting in great holes being washed in the ditch, and otherwise obstructing the even and proper flow of water over the portion of the ditch that plaintiff was required to wet by leading the water therein, resulting in loss of water and great inconvenience to plaintiff. By reason of the violation of the decree and of the conduct of defendant as alleged, plaintiff claimed to be damaged in the sum of $ 250 for each of the years from 1916 to 1933, both inclusive, or a total sum of $ 4000, and prayed for such damages, and that the defendant be required to cement a portion of the ditch, provide proper headgates and other devices, that the ditch be kept clean and for other relief. Demurrer to the amended complaint was overruled. This is assigned as error. The complaint as amended states a cause of action for damages against the defendant corporation, if a stockholder in an incorporated mutual irrigation company may maintain such an action for loss of water occasioned by failure to properly maintain and operate its distribution system. The duty of the defendant corporation to maintain the system in a reasonably good condition and state of efficiency so that the stockholders might obtain their water with as little loss or inconvenience as consistent with the conditions and circumstances connected therewith, was definitely settled in the prior suit between the corporation and Burtenshaw, the decree of which was pleaded in the complaint and relied on by plaintiff. A breach of such duty, if it result in injury, would give rise to an action for damages. The law on the subject is well expressed in the headnote to Hyink v. Low Line Irr. Co., 62 Mont. 401, 205 P. 236, 237, as follows:

"A mutual, irrigation company, organized to supply water to its stockholders in proportion to the amount of their stock, is under the duty of using reasonable care and diligence in maintaining its canal and keeping it supplied with water, and of regulating and dividing its use among the stockholders in...