Jenkins v. Stephens
| Decision Date | 01 September 1927 |
| Docket Number | 4466 |
| Citation | 71 Utah 15,262 P. 274 |
| Court | Utah Supreme Court |
| Parties | JENKINS v. STEPHENS |
Rehearing Denied December 21, 1927.
Appeal from District Court, Second District, Weber County; George S Barker, Judge.
Action by W. L. Jenkins against Lottie M. Stephens. Judgment for plaintiff, and defendant appeals.
REVERSED AND REMANDED.
N. J Harris, of Ogden, for appellant.
Pratt & Pratt, of Ogden, for respondent.
FRICK, J., did not participate.
The complaint in substance alleges plaintiff's ownership and possession for more than ten years last past of certain real property situated in Weber county, Utah. The land is described with reference to particular subdivisions of the United States survey. It is also alleged that at all times mentioned in the complaint the defendant was the owner of certain lands lying south and west of plaintiff's said land and adjacent thereto. It is then alleged that from time immemorial there has been and still is a certain natural swale or water course entering the said land of plaintiff at or near the northeast corner thereof and running thence southwesterly through and across plaintiff's land to and onto the said land of the defendant, carrying off the flood and waste water from plaintiff's land, and from land higher in elevation than the plaintiff's, including waste water from irrigation on defendant's land adjoining plaintiff's land on the south.
It is further alleged in said complaint that during the fall of 1917 defendant wrongfully and unlawfully constructed a dam or dyke across said water course along the east line of her said land near the plaintiff's land, said dam or dyke being about 300 feet long and 5 feet in height and that defendant has ever since wrongfully and unlawfully sustained said dam across said natural water course or swale in such manner as to prevent the water flowing down said water course, and thereby caused said water to back up and flood over and upon the land of the plaintiff and kill valuable crops then growing thereon; that it prevented the cultivation of said land and rendered the same unfit for cultivation or the production of valuable crops thereon and caused stagnant water to accumulate and remain on plaintiff's premises, thereby preventing him from using or enjoying the same practically rendering plaintiff's property and home thereon unfit for habitation, to his damage in the sum of $ 5,000. Finally, it is alleged that by reason of the maintenance of said dam about 7 1/2 acres of plaintiff's land was rendered unfit for cultivation and in order to reclaim it plaintiff constructed certain drains and established a pump on his premises for the purpose of drawing off the water from his land, at a cost of $ 1,500; that after making said improvements defendant wrongfully prevented the use thereof for the purpose mentioned, thereby rendering said drainage system practically worthless.
Plaintiff prays judgment for damages in the sum of $ 5,000 as general damages, and special damages in the sum of $ 1,500, and costs.
For answer to the complaint defendant admits plaintiff's ownership of the land claimed by him down to September 29, 1917, and for want of information denies his ownership thereafter. Admits defendant's ownership as alleged in the complaint, and denies every other allegation. For a further defense defendant alleges that on September 29, 1917, in an action in the district court of Weber county, wherein the plaintiff herein was defendant and the defendant herein was plaintiff, it was found and adjudged that there was no stream of water upon the land of plaintiff described in this action; that the water on said land was not subject to appropriation; that the water flowed into a depression or sump from which the plaintiff pumped the water to the higher portions of his said land. Defendant further alleges that if plaintiff sustained any damage it was by reason of his own acts.
The jury to whom the case was tried rendered a verdict for the plaintiff in the sum of $ 3,600. From the judgment entered thereon defendant appeals and assigns as error refusal of the court to instruct the jury as requested by defendant, also the giving of a certain instruction, insufficiency of the evidence to sustain the verdict, and that the judgment is contrary to law. Appellant also assigns as error the denial of her motion for a nonsuit, her motion for a new trial, and the admission of certain evidence over her objection.
Evidence was admitted over appellant's objection relating to respondent's claim for special damages. This claim was withdrawn by respondent before he concluded his evidence, and the court instructed the jury accordingly. The defendant nevertheless contends that the admission of the evidence was prejudicial and assigns it as error. We are of opinion that the error, if any, was effectually cured by withdrawing from the jury the claim for special damages and the instructions of the court in relation thereto.
No evidence was offered by appellant in support of the former judgment attempted to be pleaded in her answer, and no reference is made thereto in her brief. It appears, therefore, that that defense was abandoned.
The features of the pleadings above referred to will not be further considered.
The material issues presented by the pleadings are as follows: First, whether or not there was a natural swale or water course running through the land as alleged in the complaint; second, whether or not the defendant constructed, or caused to be constructed, a dam or dyke across the water course as alleged; third, whether or not plaintiff was damaged thereby and to what extent; and, fourth, if damaged, whether or not it was caused by plaintiff's act.
There is substantial evidence to the effect that plaintiff is the owner of the land described in his complaint; that it consists of about 15 acres; that it slopes from the north toward the center and from the south towards the center, and slopes generally from the northeast to the southwest, the whole constituting a swale or depression running through the land towards the southwest portion thereof. The topography of the land is such that the drainage from precipitation and from irrigation on plaintiff's land and other adjacent lands lying upon a higher level all find their way towards the southwest portion of plaintiff's land. At that point the water crosses the west boundary line of plaintiff's land and flows thence across the defendant's land in a northwesterly direction, finally emptying into a big hollow on defendant's land, which hollow conveys the water to the Weber river. There is also evidence to the effect that willows and other forms of vegetation characteristic of a water course grew along portions of the ditch across defendant's land leading to the big hollow. There is no conflict in the evidence as to the contour of the land as above described and that the natural drainage thereof is into the big hollow. The evidence presented by plaintiff clearly shows that such was the natural condition when plaintiff came into possession of his land in 1910.
The question as to whether there was a natural water course or swale running through the land as charged in the complaint was submitted to the jury under proper instructions, and by its verdict the jury evidently found the existence of the water course as charged. That finding is sustained by the evidence. There is also evidence to the effect that when plaintiff entered into possession of the land in 1910 he found evidences of ditches and drains through his land, evidently for the purpose of collecting and conveying water towards the point where the water passes into defendant's land as above described. He cleaned out such ditches and improved the system or drainage. He found upon a survey of his land that the fence on his supposed west boundary line was about eighty feet east of where it should be. He moved the fence to conform to the west boundary line, and at that point laid a tile pipe in the bottom of the ditch where the water flowed into defendant's land and covered the pipe with dirt to a depth of about 18 inches. The pipe extended about 125 feet into defendant's land.
In 1917, according to the testimony of plaintiff's witnesses, defendant constructed, or caused to be constructed, a dam or dyke 200 or 300 feet long, running north and south, at and on the west side of plaintiff's said fence on his west boundary line, and at the point where plaintiff laid his pipe. It is claimed that the dam was 5 or 6 feet in elevation and effectually stopped the flow of water through said pipe and caused it to back up on plaintiff's land and destroy some of the crops growing thereon. There is a sharp conflict in the evidence as to the construction of the dam, defendant claiming that all that was done was by way of repairing a road used by her in going to and from her land lying south. Many other matters pertaining to the alleged construction of the dam are hotly contested, but the evidence on the part of plaintiff is clear and unambiguous to the effect that the dam was constructed as above stated and that it had the effect of backing up the water on the plaintiff's land to the injury of some of the crops growing thereon and to the permanent injury of the land itself. It appears from the evidence without contradiction that about an acre and a half of his land in the southwest corner was completely covered with water and that flags and bulrushes are now growing thereon. The evidence of plaintiff and his witnesses is to the effect that from five to seven acres of his land is in part actually covered with water and in part so soaked with water as to...
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