Levy v. Salt Lake City

• Decision Date: 16 November 1881
• Citation: Levy v. Salt Lake City, 3 Utah 63, 1 P. 160 (Utah 1881)
• Court: Utah Supreme Court
• Parties: LEVY v. SALT LAKE CITY

1 P. 160

3 Utah 63

LEVY v. SALT LAKE CITY

Supreme Court of Utah

November 16, 1881

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

Sutherland & McBride, for the appellant, cited, on the question of the liability of the city, Thompson on Neg., 731--733, 738, 740 741, 745; 91 U.S. 540; 1 Black, 39; 4 Ohio St. 80; 6 Gray 547; 5 Id. 110; 3 N.Y. 464.

Reversed and remanded.

A Miner, for the respondent.

The power to control and regulate the use of the waters of the city is a police power, and the city is not liable, in the absence of a statute, for the wrongful or negligent exercise of the power: 8 Met. 462; Cooley on Torts, 620; Elliott v. City of Philadelphia, 75 Pa. St.--; 13 Met. 297; 3 Cush. 121; 51 Cal. 52, and cases cited in appellant's brief in said case. See also 16 Gray, 297; 102 Mass. 489; 7 Id. 169, 187; 8 Met. 462, 466; 19 Pick. 511.

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

OPINION

TWISS, J.:

The plaintiff in his complaint alleges that the defendant is a municipal corporation, organized by and under an act of the legislature of Utah; "that under and by virtue of the power granted by defendant's charter, the defendant has taken the entire control and possession of all the flowing waters and the watercourses within its territorial limits; that on the first day of July, 1880, the defendant had exercised such control and possession, that by virtue of its ordinances it excluded all persons from any control over or interference with the abundant waters which were flowing in the city, under penalties to be sued for and collected for the benefit of said city, and from all use of said waters except such as should be distributed by said defendant's agents and servants, to persons paying therefor; that on said first day of July, 1880, the defendant turned the waters aforesaid then in its control and possession, and flowing in the vicinity of the plaintiff's lot or premises, into and upon the land adjacent to the plaintiff's premises, upon which was plaintiff's cellar, in which was stored a stock of tobacco owned by the plaintiff, and wrongfully permitted and caused the said waters to run in great volume into and upon the said adjacent land for a long time, and there to accumulate in a large body without the knowledge or consent of the plaintiff, and there to soak into the ground and discharge itself into said cellar, and thereby filled said cellar with water, and ruined said stock of tobacco, without any fault or negligence of the plaintiff, to the damage of the plaintiff in the sum of five thousand dollars."

The defendant, in its answer, denies that the tobacco mentioned in the complaint was owned or stored by the plaintiff as alleged; admits that it is a municipal corporation as charged, but denies that by virtue of its charter, right, or power, or otherwise, it has taken the entire or any control or possession of all or any of the waters or watercourses within said city whatsoever, or that it exercises such control. The defendant also makes a specific denial of the allegations of the complaint, and alleges contributory negligence on the part of the plaintiff. The answer also contains the following sentence: "Defendant further says and admits that by virtue of its chartered power, and as by its charter it was and is required to do, it has assumed to and does regulate and control the distribution of the waters flowing into said city, throughout such public channels, as it deems most advantageous to the inhabitants of said city, and in such a manner only as shall prevent the unnecessary waste of such waters. That defendant does not claim the ownership or possession of such waters, and never has so claimed such waters. That defendant does claim the right, and the same is enjoined as a duty upon defendant by its charter, to regulate and control the distribution of such water flowing throughout the public channels or watercourses in said city for the respective use and benefit of the inhabitants of said city, who are the owners of and entitled to the use of such waters, and not further or otherwise."

On the trial, at the conclusion of the plaintiff's case, the defendant moved for a nonsuit, which was by the court granted.

A municipal corporation is created by legislative act for the purpose of enabling its inhabitants to manage and control their local affairs; in other words, that they may have the right of local self-government within the limits of and in accordance with the provisions of its charter, which is its constitution, the source of all its authority and powers, creating and defining its duties. Mr. Dillon, in his work on municipal corporations, section 89, says: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: 1. Those granted in express words; 2. Those necessarily or fairly implied in or incidental to the powers expressly granted; 3. Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable." Where power to act is clearly given, the right of the city to act by its authorized officers or agents within the limits and scope of the granted power can not be judicially interfered with or questioned, except in cases of imputed fraud, or where within the province committed to its charge there is a manifest invasion of private rights. The power to act necessarily carries with it the right of determining the manner of acting and of executing the power; and if a city, by its common council or other authorized agents, in undertaking to carry out or execute a power granted by its charter, commits a wrongful act, causing a direct injury to the person or property of another outside of the limits of its public work, then in such case it becomes liable for such injury in a private action. In Perry et al. v. City of Worcester, 6 Gray 544, Chief Justice Shaw says: "A public work authorized by law must be executed in a reasonably proper and skillful manner, with a just regard to the rights of private owners of estate. If done otherwise, the damage is not necessarily incident to the accomplishment of the public object, but to the improper and unskillful manner of doing it; such damage to private property is not warranted by the authority under color of which it is done, and it is not justifiable, and a wrong, for the redress of which an action of tort will lie." This proposition of law, so clearly expressed by this learned and eminent jurist, is so universally adopted and so abundantly sustained by authority that a citation of cases would be useless.

The charter of the defendant empowers it "to distribute, control, and so regulate the waters flowing into the city throughout such channels as may be most advantageous, and to prevent the unnecessary waste of water." And for the purpose of carrying out and executing this power, it also grants to the city "power by ordinance to annually levy and collect taxes on the assessed value of all real and personal estate or property in the city made taxable by the laws of the territory, not to exceed one and one quarter mills on the dollar, to control the waters of said city." From the ordinance read in evidence, it can not be pretended that the city had not accepted these provisions, and was not at the time of the alleged injury to plaintiff's property acting upon and under them; and in its answer it "claims the right, and the same is enjoined as a duty upon defendant by its charter, to regulate and control the distribution of the waters flowing throughout the public channels or watercourses in the city for the respective use and benefit of its inhabitants, who are the owners of and entitled to the use of such waters, but not further or otherwise," but says the "defendant does not claim the ownership or possession of such waters, and never has so claimed such waters."

The fact that the defendant does not claim to own the waters is of no importance in the consideration of a claim for damages for a wrongful or negligent use of them. The waters of a stream running through a city do not belong to the corporation, but if it, in the performance of a public duty builds a bridge over the stream in an improper and unskillful manner, or if, having built it in all respects in a proper and skillful manner, it ceases to have a just regard for the rights of private owners of adjacent estate, and becomes negligent in sustaining and keeping the same in good repair, and thereby private property is damaged, it can not escape the just responsibility for its negligence: Perry et al. v. Worcester, supra. By the testimony produced on trial, it appeared that the defendant, as a part of its general plan of irrigation, had constructed a water ditch near to one side of one of its streets; from this, which unquestionably is a public ditch or channel, flowed the water which irrigated the premises of the plaintiff and others, and filled the plaintiff's cellar, and caused the damage complained of. This ditch belongs to the city, and was under its sole and exclusive control; the expense of its...