Dahl v. Salt Lake City

• Decision Date: 26 March 1915
• Docket Number: 2587
• Court: Utah Supreme Court
• Parties: DAHL v. SALT LAKE CITY

147 P. 622

45 Utah 544

DAHL v. SALT LAKE CITY

No. 2587

Supreme Court of Utah

March 26, 1915

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Eric Dahl against Salt Lake City, a municipal corporation.

Judgment for plaintiff. Defendant appeals.

REVERSED with directions to dismiss.

H. J Dininny, City Attorney, and Aaron Meyers and W. H. Folland Asst. City Attys., for appellant.

Cheney. Jensen & Holman for respondent.

McCARTY J. FRICK, J., concurring. STRAUP, C. J., dissenting.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to recover damages for injuries to his crops alleged to have been caused by seepage water from defendant's canal arising on his land and on other lands farmed by him. The complaint, which contains several causes of action, was filed August 21, 1912. It is alleged, among other things, that Salt Lake City, in the years 1908, 1909, 1910, and 1911, owned and operated a certain carrying canal known as the Jordan and Salt Lake City Canal, which extended from a point on the Jordan River, in the southern part of Salt Lake County, in a northerly direction into Salt Lake City, and in its course extended along a side hill or slope above and near certain premises owned and in the possession of the plaintiff; that defendant negligently permitted willows, brush, and weeds to grow along and upon the lands and bed of said canal where said canal passes above the lands mentioned, and "negligently allowed the channel of said canal to become filled with sediment, and negligently and carelessly attempted to use the said canal for the carriage of a larger flow of water than the said canal was capable of carrying in a safe and proper manner, * * * and in consequence the flow of water was raised and flowed in contact with the upper and porous sections of the banks of said canal, * * * and large quantities of water seeped and percolated through the upper and porous sections of the lands of said canal nearest to, above, and adjacent to said parcels of land, and saturated and flooded the aforesaid land, whereby plaintiff's crops" of hay, grain, potatoes, and sugar beets growing thereon were destroyed, rendered worthless, and incapable of harvest, etc. Defendant demurred to the complaint on the grounds:

"(1) That said complaint does not state facts sufficient to constitute a cause of action; (2) that it appears upon the face thereof that said cause of action is barred by the provisions of sections 312 and 313, Compiled Laws of Utah 1907."

The demurrer was overruled. Defendant answered, admitting the existence and the city's ownership of the canal as alleged in the complaint, but denied the acts of negligence therein alleged, and affirmatively alleged:

"That no claim for the damages and loss alleged to have occurred to the plaintiff was presented * * * to the city council of Salt Lake City, * * * as required by section 312, Compiled Laws of Utah 1907, and that said * * * action is therefore barred, as provided in section 313, * * * by such failure on the part of the plaintiff so to present his claim."

In his reply plaintiff "admits that no claim for damages or loss was presented, properly described, and verified by plaintiff or his agent to the city council of Salt Lake City within one year after the last item of said claim accrued, alleges that presentation of such claim to the city council is not required by section 312, Compiled Laws."

The cause was tried to a jury and a verdict was rendered in favor of plaintiff. Defendant appeals.

McCARTY, J. (after stating the facts as above).

It is contended on behalf of the city that the claims, the subject-matter of the action, come within Comp. Laws 1907, section 312, and, as the reply of plaintiff admits that no claim for damages was filed with the city authorities, as required by that section, the action is barred by the provisions of Comp. Laws 1907, section 313. On the other hand, it is vigorously contended by respondent that the action does not come within the purview of section 312, and hence is not barred by section 313, supra. In support of the latter contention the case of Brown v. Salt Lake City, 33 Utah 222; 93 P. 570; 14 L. R. A. (N. S.) 619; 126 Am. St. Rep. 828; 14 Ann. Cas. 1004, is cited and mainly relied on. That was an action for damages arising out of the death of a person, which damages were suffered by a third party. This court, construing the statute with reference to the facts of the Brown case, speaking through Mr. Justice Frick, said:

"A claim included within the statute is one pertaining to a personal injury or damage to property, and must be presented [quoting from the statute] 'within ninety days after the happening of such injury or damage.' In an action to recover damages for negligently causing the death of one, a presentation of a claim is not required, for the right of action does not arise until the injury results in death. While the injury may be said to be the cause of death, the injury without death would not give a right of action such as we are now considering. * * * The words 'or damages' relate to the damages that arise immediately out of the injury to the party or to his property, and not to such as may be sustained by a third person as a secondary result, although caused by the original injury. * * * We are firmly of the opinion that it was not the intention of the Legislature to include within the statute secondary claims or damages arising out of death, which are suffered by third parties by reason of such death" (citing cases).

It will thus be observed that the Brown case is clearly distinguishable from the case at bar. In fact, what is there said seems to support the contention here made on behalf of the city, rather than the position taken by respondent. Furthermore, since the happening of the accident (September 25, 1904) out of which the Brown case arose, sections 312 and 313 have been amended (see chapter 5, Sess. Laws 1905, p. 5), and their scope, if not materially broadened and enlarged respecting claims for damages that must be presented to the city or town authorities before an action thereon can be maintained, has at least been made more clear and certain in that regard. Section 312, so far as material here, provides that:

"Every claim against an incorporated city or town for damages or injury alleged to have been caused by the defective, unsafe, dangerous, or obstructed condition of any street, alley, crosswalk, sidewalk, culvert, or bridge of any such city or town, or from the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert, or bridge, shall, within thirty days after the happening of such injury or damage, be presented to the city council of such city, or board of trustees of such town, in writing, signed by the claimant or by some person by claimant authorized to sign the same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the said injury or damages, * * * and no action shall be maintained against any city or town for damages, or injury to person or property, unless it appears that the claim for which the action was brought was presented as aforesaid to the city council or the board of trustees of the town, and that such council or board did not within ninety days thereafter audit and allow the same. Every claim, other than claims above mentioned, against any city or town, must be presented, properly itemized or described and verified as to correctness by claimant or his agent, to the city council or board of trustees within one year after the last item of such account or claim accrued, and if such account or claim is not properly or sufficiently itemized, or described or verified, the city council or board of trustees may require the same to be made more specific as to the itemization or description, or to be corrected as to the verification thereof."

Section 313 provides that:

"It shall be a sufficient bar and answer to any action or proceeding against a city or town, in any court, for the collection of any claim mentioned in section 312, that such claim had not been presented to the city council of such city, or to the board of trustees of such town, in the manner and within the time in section 312 specified; provided, that in case an account or claim, other than a claim made for damages on account of the unsafe, defective, dangerous, or obstructed condition of any street, alley, crosswalk, way, sidewalk, culvert, or bridge, is required by the council or board to be made more specific as to itemization or description, or to be properly verified, sufficient time shall be allowed the claimant to comply with such requirement."

The parts italicized were, with other matter, incorporated into the statute by the amendment mentioned. It will be noticed that the statute is comprehensive and sweeping in its terms respecting the claims that must be presented to the city council before an action can be brought and successfully maintained thereon. These claims are divided into two classes: One class consists of claims "for damages or injury alleged to have been caused by the defective, unsafe dangerous or obstructed condition of any street, alley, crosswalk, sidewalk, culvert or bridge," which must be presented "within thirty days after the happening of such injury or damage." The other class consists of "every claim, other than the claims above mentioned," and must be presented, properly itemized or described, etc., within one year after the last item of such "account or claim" accrued. The important question here...