Levy v. Salt Lake City

• Decision Date: 01 October 1887
• Court: Utah Supreme Court
• Parties: SAMUEL LEVY, RESPONDENT, v. SALT LAKE CITY, APPELLANT. LEVY v. SALT LAKE CITY, 3 Utah 63

16 P. 598

5 Utah 302

SAMUEL LEVY, RESPONDENT, v. SALT LAKE CITY, APPELLANT.

LEVY v. SALT LAKE CITY, 3 Utah 63

Supreme Court of Utah

October 1, 1887

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Sheeks & Rawlins, for appellant.

Messrs Sutherland & McBride, and Mr. Arthur Brown, for respondents.

HENDERSON, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

HENDERSON, J.:

This cause is brought against the city for negligently permitting water to flow into plaintiff's cellar and injuring his stock of goods. The case has once been before this court on the appeal of the present respondent, (3 Utah 63, 1 P. 160), and in the opinion of the court delivered on the hearing of that appeal, and above referred to, the claims of the parties as stated in their pleadings are particularly set forth. The cause was again brought to trial in the third district court, and the testimony for the plaintiff tended to show the same state of facts set forth in the opinion of Mr. Justice Twiss on the hearing of the former appeal, above referred to, and to which we refer without repeating it. Mr. C. H. Wilcken, who was city water-master at the time the injury occurred, and who was sworn on the part of the plaintiff on the former trial, being absent from the territory, the plaintiff called Alma H. Winn, the court stenographer, to make proof of his former testimony. This was objected to on the ground that the defendant was not allowed to properly cross-examine the witness. The objection was overruled, and the defendant excepted. The witness, after giving the testimony above referred to, stated also that as water-master he knew that the water assigned to block 59 ran through the ditch from the street, and that on the night in question he turned the water on the block and served notice upon the proprietors adjoining the ditch of their allotment of water, and did not turn it off, but left it running after the time when all the allotments of owners bordering thereon had expired. On cross-examination by the defendant, the witness was asked why he did not turn the water off, and various questions were also asked him for the purpose of showing that the city did not build the ditch through the block, and that he, as water-master, had not at any time exercised, or assumed to exercise, any control over it; all of which was objected to as immaterial, and the objections sustained. It is the exclusion of this testimony on cross-examination that the appellant claims renders the testimony improper.

The plaintiff also put in evidence the following city ordinance, which was received against the objection of the defendant that it was immaterial and irrelevant:

"Section 1. Be it ordained by the city council of Salt Lake City, that the city water-master shall qualify in the same manner as the treasurer; provided, that his bond shall be filed by order of the city council, and he shall have authority to appoint subject to the approval of the city council, assistant water-masters, resident within the city, who shall receive from him a certificate of appointment, and shall act in his name, and for whose official conduct he shall be responsible.

"Sec. 2. The period of artificial irrigation shall be deemed to commence annually on the first day of April, and end on the first day of November.

"Sec. 3. Before the fifteenth day of March in each year, every person entitled to use a portion of the waters flowing into said city for irrigation shall present to the city water-master, upon a from presented by said water-master for that purpose, a written application for the use of water as aforesaid, during said period, and specifying therein the lot or lots, or fraction thereof, owned or possessed by said applicant to be irrigated, and agreeing therein that upon demand, and within fifteen days thereafter, he will pay to the city water-master his proportion of the expense of constructing and keeping in repair all gates, dams, sluices, flumes and ditches necessary to convey the water from the main or natural water channel to the premises of such applicant. Said application shall be filed with the city recorder.

"Sec. 4. Before the said first day of April, annually, the city water-master shall apportion and allot the waters of the several streams flowing into the city among the applicants entitled to use a portion of said waters, with respect to time and quantity of water according to the extent of land specified in their respective applications.

"Sec. 5. Upon such appointment, and before the said first day of April in each year, each applicant as aforesaid, upon the payment into the city treasury of the sum of one dollar for each one and one-quarter acre lot, and fifty cents for each fraction thereof, named in his application, and upon presentation of the treasurer's receipt therefor to the city water-master, shall receive from said water-master a certificate specifying the proportion of water to which such applicant shall be entitled, and the times during which he may use the same in said period.

"Sec. 6. It shall be the duty of the city water-master to see to the proper location, construction, and repair of all gates, dams, flumes, ditches, and reservoirs, that water may not be wasted, streets or sidewalks overflowed or obstructed, or private property damaged.

"Sec. 7. Whenever it shall be necessary to make any of the improvements mentioned in the preceding section, an estimate of the cost thereof shall be made by the city water-master, which cost shall be apportioned among the persons interested in such improvement, according to their respective portions of water; but in case of any sudden emergency, the water-master shall cause any necessary repairs to be made immediately, the cost of which shall be apportioned thereafter. The said water-master shall cause written notice to be given to each of such persons of the amount to be contributed by him towards such improvement; said notice to be served on him personally, or be left at his residence, or at his usual place of business. Any such person who shall fail, within fifteen days after the receipt of such notice, to tender to said water-master the amount therein specified, shall forfeit his right to his portion of water for irrigation during said period, and the same may be apportioned by the water-master among such persons as bear the expense of such improvement; provided, that if any person tender the equivalent of his proportion of the costs of any of the before-mentioned improvements in labor or material necessary thereto, the water-master is authorized to accept such equivalent, but all such labor or material must be furnished within twenty-four hours after demand is made therefore by the water-master.

"Sec. 8. At all points where water is distributed into main ditches, the water-master shall cause substantial gates to be constructed, at the expense of the corporation, by which the proportion of water flowing in each way may be accurately determined.

"Sec. 9. No person shall be entitled to convey his portion of water from a main ditch to his lot or premises without first having constructed a substantial gate both at the main and at the head of his branch ditch, the latter to be closed and water-tight, except during the term of such person to use his portion of the water. Where such branch ditch crosses any portion of a sidewalk, the same shall be made of lumber or other substantial material, the covering of which shall be on the same level with such sidewalk. Any person violating any of the provisions of this section shall be liable to a fine not exceeding twenty-five dollars for each offense.

"Sec. 10. Where persons are obliged to convey water across grounds between their premises and the public water-ditches, it shall be done under the direction of the water-master, and with the least possible injury to property, either in digging the requisite ditches or in managing the water therein, and they shall be liable to all damages caused by any failure or neglect on their part.

"Sec. 11. Where the public water ditches pass through private grounds, the right of way for which has already been acquired, any person having the right to use water therefrom is authorized to pass along said ditches, as occasion may require, during the continuance of said right; such passing to be under the supervision of the water-master.

"Sec. 12. All persons using water for irrigation or other purposes, shall conduct the surplus or waste water into the regular water-ditches, and not allow said water to flood the sidewalks or streets, to the damage thereof and the unnecessary waste of water.

"Sec. 13. Any person aggrieved at the apportionment of water allotted to him by the water-master, at his proportion of costs, mentioned in the seventh section, or any other act claimed to have been done by virtue of the provisions of this ordinance, shall, on written complaint, be heard by the city council, who shall constitute a board of equalization to hear and determine such complaints; but all such complaints must be presented to the council within ten days from the origin of the act complained of. Said board may remit or rebate for any insane, idiotic, infirm, or indigent person the tax or fee provided for in the fifth section of this ordinance.

"Sec 14. Any person turning the water from any irrigating ditch or reservoir in said period, except when the use of the water has been duly allotted to him as herein provided, or without having first obtained a certificate from the water-master, as provided in sections three and five of this ordinance, or in a greater quantity than is allotted to him in said...