Cortella v. Salt Lake City

• Decision Date: 25 October 1937
• Docket Number: 5570
• Citation: 72 P.2d 630,93 Utah 236
• Court: Utah Supreme Court
• Parties: CORTELLA v. SALT LAKE CITY

72 P.2d 630

93 Utah 236

CORTELLA v. SALT LAKE CITY

No. 5570

Supreme Court of Utah

October 25, 1937

Rehearing Denied February 11, 1938.

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

Action by Alex Cortella against Salt Lake City, wherein Joseph Franklin Cortella, administrator of the estate of Alex Cortella, deceased, was substituted as plaintiff. From a judgment in favor of the plaintiff, the defendant appeals.

JUDGMENT REVERSED, and cause remanded for new trial.

Fisher Harris, City Atty., and E. R. Christensen and Gerald Irvine Asst. City Attys., all of Salt Lake City, for appellant.

Ray Van Cott, of Salt Lake City, for respondent.

HANSON Justice. FOLLAND, C. J., and MOFFAT, WOLFE, and LARSON, JJ., concur.

OPINION

HANSON, Justice.

An action was commenced in the district court of Salt Lake county by Alex Cortella against Salt Lake City to recover damages alleged to have been sustained by said Cortella because of the failure of the city to furnish him water for irrigation purposes. After the suit was filed, Cortella died and the administrator of his estate was substituted as plaintiff. The administrator filed an amended complaint to which the city demurred generally and specially. The demurrer was overruled. The city answered by way of a general denial. A trial was had to the court without a jury and resulted in a judgment for plaintiff. The defendant city has appealed from that judgment and relies upon three propositions for a reversal of the judgment. They are: (1) The general demurrer to plaintiff's amended complaint should have been sustained; (2) the findings of fact, even if supported by some evidence, do not sustain any liability of defendant to plaintiff; and (3) the facts essential to liability were not established by any evidence.

The amended complaint, so far as is material here, alleged in substance as follows: That Cortella was, at the time of his death and for more than twenty years prior thereto had been, the owner of the south half of lot 15, block 7, 5-acre plat A, Big Field survey, in Salt Lake City; that, during 1930 and 1931, he was the lessee of the north half of said lot; that during the year 1931 he had planted certain crops on the land he owned as well as on the leased land, specifying in detail the crops and area planted to each crop; that for at least 20 years said lands have been highly productive when irrigated; that the irrigation season for more than 20 years has been from April 1 to October 1 of each year; that it has been necessary during all of said time to irrigate said lands when planted into crops at least once a week in order to maintain said crops in a good healthy growing and flourishing condition; that the crops planted by him were in good healthy condition and would have matured but for the neglect and failure of the defendant to furnish and deliver irrigation water therefor; that in a certain equity action in the district court of Salt Lake county all the water rights of Parley's Canyon Creek were settled and adjudicated by a decree entered May 2, 1912, by which decree it was adjudged that a lateral of said creek known as the Turnbow ditch was, and since 1850 has been, entitled to 547/2078.91 of 83.7 per centum of the waters and flow of said creek for irrigation of 547 acres of land, subject to exchange agreement made and entered into by and between plaintiff's grantors and predecessors in interest and others, dated June 25, 1888, a copy of which is annexed to and made a part of the complaint; that said decree has been, ever since its entry, and now is, in full force and effect; that plaintiff is informed and believes that the lands above described have been ever since 1850 and now are included within and form a part of said 547 acres under the Turnbow ditch; that by virtue of the terms of said exchange agreement and the action taken by the board provided for in said agreement, as agent of the parties, it became the duty of defendant to deliver at the intake of the Turnbow ditch where it meets and opens into the channel of said creek 5.11 second feet of water for the period from May 13 to August 15, 1931, and 1.43 second feet of water from August 15 to October 1, 1931; that copies of the report and official action of said board are attached to and made a part of the complaint; that during the irrigation season of 1931 it was the practice of the water users under the Turnbow ditch to divide the stream into two equal parts among the users thereof so that each user might have half the stream for a specified number of hours allotted by the users; that, pursuant to said practice, Cortella was entitled, during the irrigation season of 1931, to half the Turnbow ditch stream for a period of 12 hours each week during the season; that said water to which Cortella was entitled under the allotment and practice was necessary and would have been sufficient to properly irrigate his lands and to have properly matured the crops thereof; that defendant failed and neglected to deliver at the intake of the Turnbow ditch or otherwise, or at all, the quantities of water adjudicated and allotted to it by said board or any substantial part thereof during the time from June 1 to October 1, 1931; that as a consequence Cortella was unable to obtain any water out of the Turnbow ditch during said period of time, and his crops wholly perished to his loss in the sum of $ 1,500. Presentation to and rejection by the city commissioners of a verified claim is also alleged.

After reciting that the first parties to said exchange agreement are the owners of primary rights to the waters of Parley's Canyon creek and the city owns the Jordan and Salt Lake City Canal and that the city desires to exchange canal water from said canal for the creek water held by the first parties, to which exchange the first parties have agreed, the agreement then provides:

"It is hereby agreed as follows: The parties of the first part whose names are signed hereto agree to exchange the waters of the Parley's Canyon Creek to which they are entitled for an equivalent quantity of water from the Jordan and Salt Lake City Canal down to the time when the primary rights exhaust the whole of said creek for irrigation purposes (and for the quantity of water to be furnished after said last named time as next hereinafter further agreed); and to permit, allow and authorize said party of the second part to take said waters of the Parley's Canyon Creek at any point it may choose and devote the same to the use and benefit of the inhabitants of Salt Lake City.

"And it is further agreed that each season when the period arrives that the water of the said Parley's Canyon Creek are at their normal stage, that is to say, when they are at the stage, when the owners of the primary rights therein are entitled to the whole of said stream for irrigation purposes, then the party of the second part shall have the waters of said creek measured at the place where it takes said waters from said Parley's Canyon Creek and the board hereinafter provided for shall decide as to such time, and it hereby guarantees to furnish to the parties of the first part from and after the date of such measurement and until the 15th day of August, a continuous supply of water from said canal equal to the portion of said creek owned by the parties of the first part at the time of such measurement and at the last named date the waters of said creek shall be measured again, as aforesaid, and the party of the second part shall furnish to the parties of the first part, from and after said measurement, a continuous supply of water from said canal equal to the portion of said creek owned by them at the time said last measurement during the remainder of the season.

"The second party agrees to maintain all existing rights of the parties of the first part to the waters of the said Parley's Canyon Creek, and to keep in repair the said Jordan and Salt Lake City Canal, and by its agent jointly with the agent of the parties of the first part, and at the expense of the former, turn out from the said canal the proper portion of the water due to the parties of the first part on the exchange aforesaid, and also to construct the necessary ditch or ditches, head gates and dams to take out of said waters of the said canal and Parley's Canyon Creek, and provide for rights of way for the same, all at its own cost and expense, and without cost or expense to the parties of the first part.

"If at any time the party of the second part, through any cause whatever, fail to supply to the parties of the first part the said quantity of water from said canal, it is expressly understood and agreed that said parties of the first part shall be restored to the portions of Parley's Canyon Creek appropriated and used by the party of the second part, under the terms of this agreement, * * * but their (first parties') agent may at once give notice to the agent of the party of the second part of the said failure of the said party to furnish the said water * * * and if such default and failure on the part of said party of the second part shall continue for a period of twelve hours then said agent for said first parties may at once proceed to turn said waters of said creek into their original channel, and place the same to the use of the said parties of the first part, and all expense and damages caused by the failure to furnish said canal waters as aforesaid, shall be borne by the said party of the second part."

The agreement then provides that, though the first parties retake the creek water because of the city's failure to furnish canal water, the city again may have the creek water by furnishing sufficient canal water to make up for any delays in irrigation caused...