Fillmore City v. Fillmore Roller Mill Co.

• Decision Date: 25 August 1909
• Docket Number: 1960
• Citation: 103 P. 967,36 Utah 339
• Court: Utah Supreme Court
• Parties: FILLMORE CITY v. FILLMORE ROLLER MILL COMPANY

103 P. 967

36 Utah 339

FILLMORE CITY v. FILLMORE ROLLER MILL COMPANY

No. 1960

Supreme Court of Utah

August 25, 1909

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.

Action by Fillmore City against Fillmore Roller Mill Company.

Judgment for plaintiff. Defendant appealed.

REVERSED AND REMANDED WITH DIRECTIONS.

D. D Houtz and J. S. Giles for appellant.

King &amp Burton and J. A. Melville for respondent.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The respondent, after stating its corporate capacity and that of appellant, in substance, alleged that respondent and appellant for more than thirty years had been associated as "tenants in common in the use of a dam and canal or ditch, said dam being commonly known as the 'City Dam,' and situate in what is commonly known as 'Chalk Creek,' about one mile east of Filmore City, in Millard County, Utah, and said canal or ditch leading from said Chalk Creek at a point about six feet east of said dam down to and through said Fillmore City;" that the waters of said creek are diverted by means of said dam to be used, and are used, by the respondent and appellant; that the interest of respondent in said dam, ditch, and water is two-thirds, and that of appellant is one-third; that appellant used its proportion of the water and said canal to generate power to operate a flour mill; that in the years 1905 and 1906 freshets occurred in said creek by which said dam was washed away; that it became necessary to replace the same, and to remove from said canal or ditch the dirt and debris left therein by said freshets; that respondent necessarily expended the sum of $ 609.26 in rebuilding said dam and in cleaning said canal or ditch; that rebuilding said dam and cleaning said canal or ditch inured to the benefit of appellant; and that, although the appellant had been requested to do so, it had failed and refused to pay its proportion of the cost of rebuilding said dam and cleaning said canal, amounting to the sum of $ 203.09, the same being one-third of the whole amount expended by respondent for the purposes aforesaid. Upon these allegations respondent prayed judgment for the amount aforesaid, and for costs. Appellant, in its answer, admitted that it and respondent were tenants in common in the use of the dam and ditch or canal, and in the use of the waters of the creek mentioned. After making certain denials, appellant, in substance, alleged in its answer that respondent and appellant were co-tenants as alleged in the complaint, and had maintained a dam in said creek and a ditch or canal as aforesaid; that they had contributed towards the maintenance thereof in the proportions of one-third by appellant and two-thirds by respondent, and that the dam and ditch so used and maintained were not affected by the freshets referred to by respondent in its complaint, but that the original dam and canal were always sufficient to divert the waters from said creek; that in the years 1905 and 1906 respondent attempted to construct a dam and a canal at a point other than the one where the original dam and canal were constructed; and that the dam and canal pretended to have been constructed by respondent as aforesaid were useless and of no benefit to appellant. The case was tried to a jury, which resulted in a verdict in favor of respondent, and appellant presents the record to this court for review on appeal.

The principal error complained of is the following: At the trial respondent was permitted to prove that in the years 1905 and 1906 portions of the old dam were washed out; that respondent had constructed a new dam about one hundred feet below the point where the old dam was located, and, further, that respondent had also constructed a new canal or ditch about two hundred feet in length which diverted the water at the new dam to the old or original ditch. Appellant objected to all of this evidence upon the ground that it was not within the issues, and was, in effect, an attempt to recover for the cost of erecting a dam other than the one mentioned in the complaint. Counsel for respondent contended that it was a question of fact, and was for the jury to say whether the dam for the construction of which a recovery was sought in this action was in effect the same dam, although constructed at a point different from the one at which the old dam was constructed as alleged in the complaint. To this contention appellant answered that it had no easement or rights in the portion of the canal or ditch leading from the new dam to the old ditch, and, further, that the new dam did not divert the water into the canal or ditch at the point where the old dam was located, and that respondent attempted to compel appellant to pay for the maintenance of a ditch and dam in which appellant has no rights because it has no right or easement in or to the new ditch or canal or the land on which it is constructed, and that this is likewise true with respect to the place where the new dam is located.

The claim of appellant seems to be conceded. At least, we do not find that it is controverted by respondent. Respondent however,...