Falkenberg v. Neff
| Citation | 72 Utah 258,269 P. 1008 |
| Decision Date | 06 June 1928 |
| Docket Number | 4586 |
| Court | Supreme Court of Utah |
| Parties | FALKENBERG et al. v. NEFF et al |
Rehearing Denied August 28, 1928.
Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.
Action by F. F. Falkenberg and another against David Neff and others. Judgment for plaintiffs, and defendants appeal.
MODIFIED AND AFFIRMED, on condition that plaintiffs file remittitur of all punitive damages in excess of $ 1,500.
Stewart Alexander & Budge, of Salt Lake City, for appellants.
William B. Higgins, of Fillmore, for respondents.
In an action for the wrongful, willful, and malicious destruction of a dam and diverting works constructed by them across Red Cedar creek, in Juab county, the respondents obtained a verdict and judgment against appellants for $ 362.50 actual damages and $ 5,000 punitive damages, from which appellants have appealed.
The respondents and the principal appellant, the Granite Creek Irrigation Company, are rival claimants to the use of the waters of Red Cedar Creek; both having uncompleted applications for appropriations for irrigation purposes of definite quantities of water therein pending before the state engineer. The application under which appellants claim is for 30 cubic feet of water per second, and was made January 4, 1918. The respondents' application is for 20 cubic feet of water per second, and was made October 7, 1921. Both applications were approved by the state engineer. Neither, when the matters in controversy arose, had been perfected, but the parties were engaged in constructing their respective works for the completion of their appropriations. As indicated by the respective dates of filling, appellants' application was prior in time and in right to the application of respondents. At the times in question, appellants had constructed no diverting works in the stream, and had no ability to make and had made no diversion or use of any of the water flowing therein. In the summer of 1922, respondents constructed a diverting dam across the channel of the creek at a point above the appellants' proposed point of diversion and thereafter diverted a quantity of the water from the stream through a flume, and were using it to aid in the construction of a ditch, when, about December 4. 1922, appellants destroyed the dam and diverting works.
On the part of respondents, it was claimed that the destruction of the dam and diverting works was willful and malicious and accompanied with unnecessary damage, and both actual and exemplary damages were prayed for.
Appellants admitted the removal of the dam, and justified the same up on the grounds that it was an obstruction in the stream which impaired and interfered with their prior rights to the use of the waters of the stream, and sought by counterclaim to recover $ 50, the reasonable cost of removing it. They made no claim for any use of the waters at that time, except to later assert that it was necessary to keep water flowing in the stream below the respondents' dam to their proposed point of diversion in order to keep the bed of the stream saturated against the time in the ensuing season when they proposed to complete their works and divert and use the waters of the stream for irrigation.
The case went to the jury upon the question of appellants' liability for actual and punitive damages for the destruction of the dam and diverting works, and resulted in a verdict as above stated.
Appellants have assigned numerous errors alleged to have occurred during the trial. Those deserving consideration relate to the instructions to the jury and the exemplary damages awarded.
The main contention of the appellants is that, as their proposed appropriation for 30 cubic feet per second of water for irrigation purposes was prior in time to respondents, they had the right, as against respondents, to have an uninterrupted flow of that quantity of water in the stream to their proposed point of diversion at all times, and that, respondents' dam and diverting works being an interference with that right, appellants were justified in removing and destroying the dam. The refusal and failure of the court to charge the jury accordingly is made the basis of numerous exceptions to the instructions given and requested instructions refused. It is unnecessary to repeat here the text of the court's instructions or of the requests for instructions offered by appellants. The court charged the jury in effect that appellants' application for the appropriation of 30 cubic feet per second of water was prior to respondents' claim; that respondents were bound in making their diversion above to so construct their diverting dam as to permit the quantity of water to which the prior claimant was entitled to be measured at and to pass by the dam in a practical and reasonable manner; that, if the dam constituted an obstruction and interference with the diversion and use of the water by the prior claimants, the latter would have the right to remove so much of it as was necessary to the exercise of their rights, and could recover the reasonable costs and expense of so doing from respondents; that if the dam was not an obstruction and did not interfere with appellants' rights to the use of the waters in question, appellants had no right to injure or destroy the same; that, regardless of the rights of the parties by virtue of their proposed appropriations, when no diversion or use was being made of the water by the owners of the prior right thereto, they could not prevent another from using it; and that, if the jury found that the respondents' dam and diversion of the water in no way lessened the supply of the water which appellants could and would then use, appellants had no right to interfere with or remove the respondents' dam. The appellants submitted several requests for instructions, to the general effect that, under their pending appropriation, they were entitled to a flow of 30 cubic feet per second of water in the stream at all times, which the respondents had no right to obstruct or interfere with. The court refused these requests. Appellants complain that the trial court failed to define the rights of appellants in the water of the stream, but left the jury to speculate and conjecture what they were.
The instructions requested by appellants as to their rights to the water in the stream were plainly erroneous. At the time in question, they were not using, and could not use, the water for irrigation purposes.
"At such times as a prior appropriator is not using the water under his appropriation for a beneficial purpose, such waters are considered and treated, under the doctrine of appropriations, as unappropriated public waters, and for such periods of time are subject to appropriation and use by others." 2 Kinney on Irrigation, 1370.
By virtue of appellants' prior application for appropriation, they had the superior right to use 30 cubic feet of water per second for irrigation purposes as against respondents, but their right was to the use only, and did not extend to the dominion or control of the water when no beneficial use was being made of it. When appellants were not able to use and were not using the water, they had no legal claim to it, and its use by another was no infringement of their rights. At the time when the respondents' dam was destroyed, the appellants had no claim or right whatever to the water being diverted or used by respondents, unless it was for the purpose of saturating the bed of the stream as now claimed. This claim was not made in the pleadings, nor was any request made to charge the jury concerning it. Although there was some evidence upon the subject, it seems not to have been a matter of importance at the trial. It is doubtful if the evidence in support of this claim as a beneficial use was sufficient to be submitted to the jury, but, since the claim of appellants in this regard was not pleaded and no request was made to instruct the jury concerning it, no error on that account is now available to appellants.
The court's charge to the jury concerning the relative rights of the parties to the use of the water of the stream at the time in controversy, and the relation of the respondents' dam thereto, is not open to any objection or exception made by the appellants. The conditions upon which the appellants' destruction of the dam could be justified were stated as favorably to appellants as they were entitled to demand, and they have no ground for complaint on this account.
It is next contended that the trial court erred in submitting the question of exemplary damages to the jury, and further erred by giving a mere abstract definition of exemplary damages, without pointing out the facts necessary to be found to support an award for such damages. This alleged error is based upon a general exception to instruction No. 15, as follows:
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