Kunz v. Utah Power & Light Co.

• Decision Date: 17 November 1975
• Docket Number: No. 74-1528.,74-1528.
• Parties: Wayne KUNZ et al., Plaintiffs-Appellees, v. UTAH POWER AND LIGHT COMPANY, a Maine Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

526 F.2d 500

Wayne KUNZ et al., Plaintiffs-Appellees, v. UTAH POWER AND LIGHT COMPANY, a Maine Corporation, Defendant-Appellant.

No. 74-1528.

United States Court of Appeals, Ninth Circuit.

November 17, 1975.

W. F. Merrill (argued), of Merrill & Merrill, Pocatello, Idaho, for defendant-appellant.

Robert C. Huntley, Jr., and Louis F. Racine, Jr. (both argued), of Racine, Huntley & Olson, Pocatello, Idaho, for plaintiffs-appellees.

Before KILKENNY, CHOY and GOODWIN, Circuit Judges.

OPINION

CHOY, Circuit Judge:

Utah Power and Light Company (Utah Power), a Maine corporation, appeals from a judgment by the district court holding it liable for negligence in permitting flood damage to the property of appellees, various Idaho landowners (Landowners). We affirm.

Background

Bear Lake lies on the border between Idaho and Utah. Bear River begins high in the Uinta Mountains of Utah, meanders back and forth between Utah and Wyoming, flows north some distance into Idaho, and finally turns south back into Utah, where it terminates in the Great Salt Lake. Bear River does not naturally enter Bear Lake, instead flowing past it a few miles to the north. In about 1917, however, the predecessor of Utah Power constructed Stewart Dam on the river, diverting its flow via canals into Mud Lake, which connects with Bear Lake. After the water reaches Bear Lake, it flows northward out of the lake, by gravity or through pumping, via an outlet canal to rejoin the old natural bed of Bear River some distance north of Stewart Dam. Between certain maximum and minimum limits (the height of the gates and the depth of the pumping intake facilities), Utah Power can control the flow out of Bear Lake, and it can close the lake so that the flow continues directly down the river. The use of Bear Lake for water storage is the central feature of the whole system. The dam, the canals, and the control facilities are located within Idaho.

Utah Power operates the system under the authority of various federal statutes, a 1920 federal district court decree, and more recently the Bear River Commission (established by the Bear River Compact, a joint effort of Idaho, Utah, and Wyoming). The explicit purposes for which Utah Power is commissioned to operate the system are, first, to store water for irrigation throughout the valley in Idaho and Utah below the Bear Lake facilities, and, second, to generate hydroelectric power. In addition, Utah Power has endeavored to use the facilities for flood control, particularly as to the spring runoffs of the watershed. Though this activity is not one of the specified purposes imposed by the authorizations, it is not precluded by them.

The Landowners are ranchers whose lands lie along the Bear River channel downstream from Bear Lake. Prior to 1917 these lands were devoted to orchard grasses and wild hays, which were dependent upon flooding from the natural spring runoffs to maintain their growth. The installation of the water storage system in 1917 harnessed the spring runoffs and stopped the flooding, so the ranchers converted their operations to alfalfa and cereal crops, which will not tolerate floods. Since the 1920's Utah Power has held flood easements on the property now held by two of the Landowners, Abel Kunz and Dean Kunz.

Because of heavy winter snows and spring rains, the spring runoff in 1971 was exceptionally large. About 2 1/2 times the quantity of water of an average year was fed into the Bear River-Bear Lake system, an amount which the Landowners' expert witness described as "above anything else they had known in past history." The storage system failed to contain all of the runoff, and the Landowners' properties downstream were flooded for several months through the summer of 1971. Similar inundation occurred in 1972 when the watershed was fed double the average amount of water.

The Landowners brought an action for damages resulting from the flooding, contending that Utah Power had been negligent in its operation of the Bear River-Bear Lake storage system. Jurisdiction in the district court was based on the diversity of citizenship of the parties and the amount in controversy, pursuant to 28 U.S.C. § 1332. Upon stipulation of the parties, the trial court ordered a bifurcated trial, separating the issues of liability and damages. A jury trial on the issue of liability resulted in a verdict and judgment for the Landowners, from which Utah Power appeals. Permission to bring this interlocutory appeal under 28 U.S.C. § 1292(b) and F.R.App.P. 5 was granted by order of this Court dated March 28, 1974.

Issues

Utah Power contends: (1) That it had no affirmative duty of flood control and so could not be held negligent for downstream flooding since it did not add to the natural flow of the river during the time in question. (2) That it cannot be negligent in failing to anticipate an unprecedented spring runoff. (3) That the Landowners' evidence, as a matter of law, was not sufficient to prove negligence. (4) That the trial court erred in applying the law regarding flood easements.

Duty of Care

Before showing Utah Power to be negligent, the Landowners must first establish that Utah Power owed them a duty of care. The existence and nature of such a duty is a question of law for the court. The trial court here noted that these storage facilities "were not authorized for or intended for flood control purposes." Instruction 16. Nonetheless, the court ruled and instructed the jury that Utah Power "had a duty in this case to use all reasonable means in the operation of its water storage system at Bear Lake to avoid flooding the lands of the plaintiffs Landowners." Instruction 15.

Utah Power emphasizes that flood control was not one of the responsibilities for which it was commissioned to operate the Bear River-Bear Lake storage system. It acknowledges that it was required to exercise ordinary care in releasing water from storage so as not to increase the natural flow in an amount that would cause or aggravate flooding. But it claims that it cannot be held liable for failing to achieve some affirmative flood-control objective that it was never assigned.

During the flood periods Utah Power released from Bear Lake no more water than was flowing into it. Had the storage system not existed, the area would have been flooded by the natural flow in the same way. The Landowners argue, however, that the damaging floods could have been prevented by proper management of the storage system — specifically, if more water had been released in earlier months Bear Lake would have had the capacity to store the quantity of water in the heavy spring runoff beyond what the downstream channel could handle. Utah Power denies that it was under any duty to take such affirmative action.

In general, the law does not require one person...