Griffeth v. Utah Power & Light Company

• Decision Date: 09 May 1955
• Docket Number: No. 13611.,13611.
• Citation: 226 F.2d 661
• Parties: Melvin GRIFFETH and Lois D. Griffeth, Appellants, v. UTAH POWER & LIGHT COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F.2d 661 (1955)

Melvin GRIFFETH and Lois D. Griffeth, Appellants, v. UTAH POWER & LIGHT COMPANY, a corporation, Appellee.

No. 13611.

United States Court of Appeals Ninth Circuit.

May 9, 1955.

COPYRIGHT MATERIAL OMITTED

Andersen & Andersen, Pocatello, Idaho, Newel G. Daines, Logan, Utah, L. Delos Daines, Salt Lake City, Utah, for appellants.

Charles L. Ovard, Ray, Quinney & Nebeker, Paul H. Ray, Salt Lake City, Utah, A. L. Merrill, Pocatello, Idaho, for appellee.

Before HEALY, POPE and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

The Griffeths own lands and are lessees of other lands in Franklin County, Idaho, through which the Bear River flows. The Utah Power & Light Company is engaged in the generation and sale of electric current in public service. The company has for more than twenty-five years maintained and operated plants and dams upon the Bear River in the manufacture of such electricity. Thereby, for that purpose, the waters have continuously been impounded, stored and released in accordance with the necessities of such an operation, causing the stream to fluctuate as it has flowed through its natural channel. One of the facilities of the company was the Oneida Power Plant and dam located some miles above the lands occupied by the Griffeths. Several other creeks flowed into the Bear River between the plant and these lands. During the winter, ice forms in this area and in the beds of the streams, including the Bear.

The Griffeths, as plaintiffs, claimed in their original complaint that a parcel of land owned by them was flooded by carelessness of defendant in discharging quantities of water, which overflowed its banks at a point where it passes through the lands of plaintiffs to their damage in several particulars, and that defendant had been warned of the consequences of its acts. Defendant filed answer and pleaded, among other defenses, that plaintiffs' complaint did not state a claim upon which relief could be granted, a general denial and the grant from a predecessor of plaintiffs in title of a perpetual easement for flooding these particular lands by fluctuation of the river in the operation of the plants. Defendant also filed a motion for summary judgment, supported by affidavits. The court granted the latter motion only in part, holding that plaintiffs were bound by the release and easement agreement and operation in accordance therewith.

Subsequently, the cause came on for trial. Plaintiffs moved to amend the complaint by alleging that defendants for five days before the overflow "carelessly and negligently discharged into" the stream quantities of water above normal flow so that "the banks of said river" about forty rods from the property line of plaintiffs were unable to contain the water which flowed first over other lands and then over plaintiffs' parcel, for the reason that defendant had previously discharged water which froze in the bed and the subsequent discharges overflowed at that point, notwithstanding defendant had notice and had been warned the continued discharge above normal flow would flood the lands of plaintiffs. There was included in the amendment a claim for damages to other lands which plaintiffs leased. Defendant objected to the amendment since summary judgment had been granted on the original parcel. The record shows as follows:

Counsel for defendant said:

"* * * we found that we have an easement to this land, the same easement. We feel that under the conditions we are entitled to a summary judgment —

* * * * * *

"The Court: Will counsel for the plaintiff admit that they have such easement?

"Mr. Anderson: It is my understanding.

"The Court: I will permit the amendment but the issues will be limited to the question of the abuse of the easement."

As a result of this colloquy, the order thus established certain facts as to both parcels and left one issue for trial. Both parties complain of this ruling of the court on motion for summary judgment. Plaintiffs assign that the trial court "erred in sustaining defendant's motion for summary judgment to the effect that defendant had an easement permitting it to flood plaintiffs' land."

The chief basis of the ruling of the court was an affidavit as follows:

"J. A. Hale, being first duly sworn upon his oath, deposes and says:

"That he is a resident and citizen of the City and County of Salt Lake, State of Utah, and over the age of twenty-one years.

"Affiant was graduated from the Virginia Polytech Institute in 1911 with a degree of Civil Engineer, and at all times since then has pursued his profession as an engineer.

"In the year 1913 affiant became an employee of defendant, Utah Power and Light Company, as a civil engineer. He continued in such employment until the year 1923 when he became Assistant Chief Engineer of defendant company, which position he continued to occupy until the year 1926 when he became the Chief Engineer for defendant company. He continued to be the company's chief engineer until the year 1937 when he was made Vice President of the defendant company in charge of engineering, which position affiant has at all times since 1937 held and now occupies.

"Affiant was and is familiar with the construction of defendant's Oneida Dam and Power Plant which was built upon the Bear River in Franklin County, Idaho, in the years 1913 to 1920, and which is referred to in plaintiff's complaint.

"Affiant further says that he has at all times since the construction of said dam been personally familiar with said dam, and personally familiar with the operation thereof. Said dam and power plant was built for the purpose of impounding waters of the Bear River and employing the waters of Bear River for the generation of hydroelectric power.

"Affiant further says that on and prior to the 22nd day of December, 1926, the lands referred to and described in plaintiff's complaint were the property of George Thomas and Anna E. Thomas, his wife. Prior to December 22, 1926, George Thomas and Anna E. Thomas asserted a claim against defendant company and demanded damages from defendant company for the alleged flooding of the lands referred to and described in plaintiff's complaint. The claim so asserted against defendant company by George Thomas and Anna E. Thomas was compromised and settled, and on December 22, 1926, George Thomas and Anna E. Thomas signed, executed and delivered to defendant company a release and easement in words and figures, as follows:

"Inst. No. 27690

"Release and Easement

"This agreement made and entered into this 22 day of December, 1926, by and between Utah Power & Light Company, hereinafter referred to as `Grantee,' and George Thomas and Anna E. Thomas, his wife, hereinafter called `Grantors,' witnesseth:

"That for a valuable consideration, the receipt of which is hereby acknowledged, the Grantors above named hereby release and discharge Utah Power & Light Company, its successors and assigns, from any and all claims for damages to the lands, crops, or other property of the Grantors heretofore caused by flooding or by the impounding or storage of the waters of Bear River, or by the fluctuation of the flow of said river, or by deposit of ice thereon, or otherwise, and/or due to the maintenance or operation of Grantee's Oneida Power Plant or other plants operated by said Grantee on said Bear River:

"And for said consideration, above named Grantors, their successors and assigns, hereby grant unto said Utah Power & Light Company, its successors and assigns, an easement for the right to continue as aforesaid the manipulation and fluctuation of the flow of said river as it passes in its natural channel through or along the lands owned, claimed or possessed by the Grantors, located in Section 17, Township 15 South, Range 39 East B.B. & M., particularly including, but not limited to the following land, to-wit:

"The Southeast Quarter of the Northwest Quarter, the East half of the Southwest Quarter and the Southwest Quarter of the Southwest Quarter of Section 17, Township 15 South, Range 39 East B.B. & M., excepting approximately 10 acres heretofore transferred to the Riverview Sanitarium Company, containing 150 acres, more or less.

"And for said consideration any damages that may result from future flooding or depositing of ice on said land caused by the fluctuation of the flow of said river in the normal operation of Grantee's plant or plants, up stream from Grantor's land, are hereby waived and released, provided future fluctuations shall not exceed those heretofore occurring in the operation of said Oneida plant.

"In witness whereof, the parties have hereunto set their hands this 22 day of December, 1926.

"George Thomas "Anna E. Thomas "Witness "Flora Eliason. "State of Utah "County of Salt Lake — ss.

"On this 22d day of December, 1926, before me William Lindsay, a Notary Public in and for the State of Utah, personally appeared George Thomas and Anna E. Thomas, his wife, known to me to be the persons whose names are subscribed to the within instrument, and duly acknowledged to me that they executed the same.

"In witness whereof, I have hereunto set my hand and affixed my notarial seal the day in this certificate first above written.

"(Seal) William Lindsay "Notary Public, Residing at Salt Lake City, Utah.

"My commission expires 5/10/30."

"Said release and easement was duly verified and acknowledged by George Thomas and Anna E. Thomas before William Lindsay, a Notary Public, and the same was thereafter duly recorded in the office of the County Recorder of Franklin County, Idaho, on the 11th day of January, 1927, in Book 5 of Miscellaneous, at page 43.

"The lands referred to and described in said release and easement included the lands referred to and described in plaintiff's complaint.

"Affiant further states that in the month of December, 1948, and the month of January, 1949, he was familiar with the operation of the Oneida plant of the defendant company, and that the same...