Fenton v. Salt Lake County

• Decision Date: 05 July 1884
• Court: Utah Supreme Court
• Parties: FENTON v. SALT LAKE COUNTY

4 P. 241

3 Utah 423

FENTON v. SALT LAKE COUNTY

Supreme Court of Utah

July 5, 1884

APPEAL from the third district court. The opinion states the facts.

Judgment of the court reversed and cause remanded, with instruction to that court to sustain the demurrer.

Zerubbabel Snow, for the appellant.

The complaint does not state facts sufficient to constitute a cause of action against this defendant. It does not state that the plaintiff before the commencement of this action laid before the county court of the county his claim or demand, with the evidence to sustain it, and that the county court rejected said claim.

The counties in Utah, like counties in the states, are municipal corporations. They are only subdivisions of the territory--branches of the domestic government: See Railroad Company v. County of Otoe, 16 Wall. 676; The Mayor v. Ray, 19 Id. 475; Angell & Ames on Corp 14, 20, secs. 18, 23.

A territory can not be sued without its consent--I trust I need no authority for this--neither can a corporation created by the territory sue or be sued without the consent of the creator. True, in the absence of any direct provisions in the charter of a corporation authorizing it to sue or be sued the right to sue and be sued, to defend and be defended exists by implication: Angell & Ames on Corp. 99, sec. 100.

This implication is a presumption of law--i. e., it is presumed the legislature intended to give the right--but this presumption does not take away the right of the legislature to prescribe conditions and terms upon which the action may be commenced, conducted, and closed: Angell & Ames on Corp. 101, sec. 111.

As municipal corporations are created for the general good of the inhabitants within its locality, it is fair to presume that no action would be brought by it except for what the officers elected by the people believed to be just. No restraint against bringing an action by them need be given. As the law presumes that municipal officers will conduct the municipal government for the general good, it is only just that before an action be brought against the municipality the claim, demand, or cause of the suit should be laid before the trustees, with the evidence of its justness. This our legislature has required: See acts of Utah, 1878, pp. 3, 4, sec. 3, 6.

This he did not do before he brought his action. He should have done it and averred it in his complaint, and that the county court rejected it: See 2 Dillon on Mun. Corp., 3d ed., sec. 937.

J. D. Lomax, for the respondent.

No brief on file.

EMERSON, J. HUNTER, C. J., and TWISS, J., concurred.

OPINION

EMERSON, J.:

This action was brought against the county of Salt Lake and others to recover damages for injuries to plaintiff's land, caused by constructing canals near said land, and diverting the waters of a natural stream therefrom, and to which was added a prayer for equitable relief.

The case was dismissed as to the defendants other than Salt Lake county. The county demurred to the complaint, which was overruled, and the issues raised by...