Davis v. Midvale City

• Decision Date: 25 March 1920
• Docket Number: 3404
• Citation: 56 Utah 1,189 P. 74
• Court: Utah Supreme Court
• Parties: DAVIS v. MIDVALE CITY

189 P. 74

56 Utah 1

DAVIS v. MIDVALE CITY

No. 3404

Supreme Court of Utah

March 25, 1920

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Nora F. Davis against Midvale City. Judgment for plaintiff, and defendant appeals.

REVERSED.

H. A Smith & Son, of Salt Lake City, for appellant.

David W. Moffat, of Murray, for respondent.

THURMAN J. CORFMAN, C. J., and FRICK, WEBER and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff's complaint in substance alleges that she is the owner of certain land in Salt Lake county, Utah, consisting of eight and sixty-nine hundredths acres; that a certain street of defendant city known as Wasatch street extends from State street on the east to the main street of said city on the west, a distance of approximately one mile; that said street passes the said land of plaintiff and prior to August or September, 1914, said street, at the point where it passes plaintiff's land, was only twelve or fourteen feet in width and was occupied by a roadway and a ditch for carrying water to irrigate lands lying west; that on or about the date last mentioned defendant undertook to widen said street and did widen it to a width of about forty-two feet, taking from the north side of plaintiff's said land a strip extending the whole length thereof about eight feet in width, and removed the said irrigating ditch from the place where it previously, for many years, had run along said street; that said ditch in its old location had become sodded and small willows and other vegetation had grown on the banks thereof and caused it to become firm and well established. It is then alleged that in removing the said ditch defendant reconstructed it on the south side of said street in close proximity to the new fence line establishing the south boundary line of said street and occupying that part of said street dedicated and set apart for sidewalk purposes, thereby preventing the use thereof for said purpose and rendering plaintiff's said land inaccessible from said street along the whole northern boundary of her said land. It is further alleged by plaintiff that during the years 1915, 1916, and 1917 defendant city negligently and carelessly failed and neglected and refused to keep said ditch in repair and permitted the water to flow over the same, whereby it would wash away a portion of plaintiff's land and undermine the fence along the north boundary thereof, and thereby inflict, and is constantly inflicting, damage and injury to plaintiff's property and constantly depreciating the value thereof, all to plaintiff's damage in the sum of $ 3,000, for which sum she prays judgment.

Defendant, by way of answer, admitted the location of said Wasatch street and the water course or ditch thereon, and that said ditch was used for the irrigation of lands lying west of said street and for carrying waste water which flowed in said ditch. Defendant then, in substance, admitted that it widened said street and reconstructed said ditch substantially as stated in the complaint, but alleged that the land taken was dedicated for said purpose by plaintiff and others owning the land so taken and used, and that the improvements so made were done by it at great expense and when completed were turned over to and accepted by plaintiff and the other owners of land so taken. Defendant further alleged that the improvements so made were of great benefit to the plaintiff and enhanced the value of her premises. It denies generally the remaining allegations of the complaint, and further alleges that the old water channel and the new ditch as constructed were at all times the subject of private ownership, and that the defendant never had any interest in said ditch or water channel or the water flowing therein, nor did it ever exercise any control thereof or regulate the same, and does not now exercise any jurisdiction whatever over or concerning the same.

In view of the issues presented by the complaint, a considerable portion of the answer of defendant was wholly immaterial, and likewise plaintiff's reply thereto. It is not necessary to specifically mention the portions of the pleadings to which we refer.

The cause was tried to a jury, verdict was rendered for plaintiff, judgment entered, and defendant appeals.

The errors assigned relate to certain instructions to the jury and refusals to instruct as requested by the defendant. A careful examination of the complaint discloses the fact that the plaintiff complained of no wrong on the part of defendant except that it constructed the new ditch at the place dedicated for a sidewalk, rendering plaintiff's land inaccessible from the street, and neglected and failed to keep the ditch in repair during certain years, by means of which the water washed away some of her land and undermined her fence. It is nowhere alleged that the taking of the land for either the street or the ditch was wrongful, or without the plaintiff's consent. The answer denies the material issues to which we have referred and alleges matter tending to show nonliability as a matter of law. These are the only legitimate issues presented to the court so far as the pleadings are concerned. The defendant, however, in its answer alleged that the improvements made by it had greatly benefited the plaintiff and enhanced the value of her property. Such an allegation might have been pertinent in an action for the condemnation of property under the law of eminent domain, but it certainly had no proper place in an action for damages on the grounds of negligence. In any event, the trial of the case to a great extent proceeded upon the theory that it was an action under the law of eminent domain instead of an action for damages for negligence. This conduct of the parties brought confusion into the case and tended to befog the real issues presented in the complaint. We are disposed to agree with the statement of appellant's counsel in his brief filed in the case that--

"The issues became so mixed and involved that even the attorneys could not tell finally what they were contending for."

Some of the court's instructions to the jury, instead of clarifying the situation, tended rather to add to the confusion. The error on the part of the court was largely due to the conduct of the parties to which we have referred. It is not our purpose to review in detail the instructions of the court to which reference has been made. It is sufficient to state generally that all of said instructions based on the theory of a condemnation proceeding had no place in the case, not alone because they were outside the issues made by the pleadings, but also because the court by another instruction clearly within the issues took from the jury all right to consider the very questions which it afterwards submitted for their consideration. This will appear more clearly when we come to consider the instructions of the court.

There is no serious conflict in the evidence relating to the facts which we deem material. Wasatch street, as described in the pleadings, extends from State street on the east to the main street of defendant city on the west, for a distance of approximately one mile. Prior to August, 1914, the street varied in width from twelve to thirty-three feet. It was unimproved, although a road on the north side of the street was traveled by those who had occasion to use it. An old water ditch or channel (whether natural or artificial is immaterial) ran on the south side of the street and was used for conveying water to farmers west of the premises in controversy, and also conveyed such waste water as found its way into the channel. Neither the water channel nor the water flowing therein had ever been regulated or controlled by defendant city, neither had defendant derived any revenue therefrom nor exercised any jurisdiction over or concerning either the channel or the water. In August, 1914, the abutting owners of Wasatch street, including the plaintiff, petitioned the defendant city to widen and improve the street and reconstruct the water channel, which at that time formed a part of the street. As the petition referred to is a controlling factor in our deliberations and is not voluminous, we quote it in full, except the names of the petitioners subscribed thereto:

"We, the undersigned property owners on either side of that certain street or lane, commonly known as 'Angel Row,' and officially designated and called 'Wasatch Street,' running east and west from State Road to Main street, in Midvale City, do hereby petition the honorable mayor and city council of said Midvale City, to open and widen said street to a width of forty-two feet, including the present street, upon the following conditions: The said undersigned property owners will convey by easement to said Midvale City and the public, all land fronting on either side of said street, as may be necessary for the opening and widening thereof to the width of forty-two feet. The said Midvale City to establish the proposed new property lines, rebuild all present fences on such lines, reconstruct water ditches, flumes, etc., and grade and maintain said street, in a manner commensurate with public demands from time to time."

In pursuance of the request made by the petitioners, the city laid out the street forty-two feet in width throughout its length, taking from the owners on each side of the street such additional land as was necessary to make the street a uniform width of forty-two feet.

The portion taken from the plaintiff was a fraction over eight feet. In addition thereto, the defendant took a strip of three feet in width from the abutting owners on the south side, including the plaintiff, upon which to construct a new water channel in the...