Lund v. Salt Lake County

• Decision Date: 18 July 1921
• Docket Number: 3616
• Citation: 58 Utah 546,200 P. 510
• Court: Utah Supreme Court
• Parties: LUND v. SALT LAKE COUNTY

200 P. 510

58 Utah 546

LUND v. SALT LAKE COUNTY

No. 3616

Supreme Court of Utah

July 18, 1921

Rehearing Denied August 22, 1921.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Carl R. Lund against Salt Lake County. Judgment of dismissal, and plaintiff appeals.

AFFIRMED.

J. E Darmer and S. P. Armstrong, both of Salt Lake City, for appellant.

A. E. Moreton, Co. Atty., of Salt Lake City, for respondent.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an action to recover damages for injury to certain fish ponds and destruction of fish contained therein situated in Salt Lake County, Utah. The defendant demurred to the complaint. The trial court sustained the demurrer. Plaintiff elected to stand on his complaint, and an order was made dismissing the action. Judgment was entered accordingly, from which judgment plaintiff appeals.

Three causes of action are alleged: (1) For taking and damaging property for a public use; (2) for a nuisance by which plaintiff's property was injured and destroyed; (3) for negligent acts and omissions on the part of defendant in handling and controlling certain waters for public use, and in its proprietary capacity for hire.

The first cause of action, as far as material to the issues involved, alleges in substance the corporate capacity of defendant; that during the months of July and August, 1916, and at all times alleged in the complaint, plaintiff was and is now lawfully possessed and the rightful occupant of certain lands consisting of about 5 acres, minutely described, upon which he had constructed at great expense certain trout ponds, consisting of 10 in number, of various sizes and dimensions ranging in depth from 4 to 8 feet, connected by ditches and conduits so as to cause a flow of water through said ponds. The ponds and their relations to each other, together with the manner of their construction, are described with great particularity. It is then alleged that during all of said times plaintiff was and had been engaged in the breeding and raising of trout for market, and that said ponds were especially prepared for that purpose; that plaintiff's dependence for water to supply said ponds was the water of certain natural springs, conveyed by ditches or conduits into said ponds; that on and prior to July 21, 1916, said ponds, by the means aforesaid, had been supplied with pure, clear, cold water, well adapted to the breeding and raising of trout, and were at said time stocked with growing trout ready for market, and in course of growth and development. The complaint minutely describes the number, size, and value of the different classes of fish ready for market and in progress of development, aggregating in value the sum of $ 6,583.50. In addition thereto it is alleged that plaintiff owned 675 spawners of the reasonable value of $ 5 each, which constituted his capital in said business, of the total value of $ 3,375; that said spawners and growing trout were all in good, healthy condition; that the total reasonable net value of all said fish was the sum of $ 9,700.

Plaintiff further alleges that at all the times mentioned said defendant operated and controlled a water system, by which it supplied with water the county infirmary, maintained by said defendant, primarily and mainly for the care of its dependent poor, and secondarily for the furnishing of a supply to other persons for compensation; that said defendant also, by and through its said water system, supplies, and did at the time mentioned supply, the inhabitants of that vicinity with water for hire, and that connected with and as part of said water system said defendant operated and controlled a certain reservoir situated northeasterly from said fishponds, constructed and maintained on the hillside at a greater elevation; that from said reservoir water was and is conveyed by a pipe to said infirmary and to the water system supplying the residents in the vicinity thereof; that from said reservoir there is and was at all times also a water ditch, leading southwesterly down said hill, which carried and still carries surplus and overflow water from said reservoir into said ditches which supply and did supply water from said natural springs to plaintiff's said fishponds; that defendant is the owner or tenant of the freehold of the lands upon which defendant maintains said infirmary, reservoir, and pipe line, and the water ditch carrying said surplus and overflow water from its said reservoir--all connected with and part of its said infirmary and water system; that said defendant was operating and controlling said reservoir and water system, and furnishing water to its said infirmary and to certain neighboring residents for hire as aforesaid, from about the 21st day of July to the 5th day of August, 1916, and for the purpose of cleansing its said reservoir, by means of large streams and quantities of water did flush said reservoir, and did bring and cause to flow into said reservoir large quantities of water not naturally flowing therein, but brought by said defendant from outside sources, and said defendant did cause, suffer, and permit large quantities of water carrying large quantities of foul sediment to flow from said reservoir, and did, without the consent and against the protest of plaintiff, suffer and permit the same to escape therefrom into said water ditch in such volume that said ditch was unable to carry the same, and caused the same and the greatly increased flow of water to overflow and escape from said ditch onto the adjoining land, and to flow through stable manure spread thereon, from which said overflow water extracted certain substances and poisons, and said overflow water also contains poisonous sediment and substances from said reservoir, and said waters were contaminated, foul, and polluted, and were deleterious, destructive, and fatal to plaintiff's fish, and said waters, so brought by defendant into its said reservoir, and so suffered and permitted by said defendant to escape therefrom into plaintiff's said fish preserve, carrying said poisonous sediment from said reservoir and said poisons extracted as aforesaid from said manure, were unfit for use, and when merged with the waters of said ponds, and as the proximate cause thereof, destroyed the health and life of plaintiff's trout in said ponds, and in consequence thereof said trout were made sick, prevented from spawning, and were destroyed; that plaintiff lost all of said fish except approximately 1,760 growing trout and 40 old spawners, rendered barren by said poison waters, of the reasonable value of $ 230; that plaintiff lost all his income and profits which he otherwise would have received. It is then alleged in the complaint that plaintiff's fishponds were greatly damaged by the deposit of poisonous sediment therein, causing him great expense in repairing said ponds, his total expense and damage aggregating the sum of $ 9,570, for which sum he prays judgment; that plaintiff seasonably presented to defendant his claim for said damages, duly verified, but the same was disallowed.

For a second cause of action plaintiff alleges substantially the same facts as in the first cause of action, and demands the same relief, on the grounds that the acts and omissions complained of constituted a nuisance.

In the third cause of action the same acts and omissions are repeated, with the additional allegation that the defendant was negligent in respect to the matter charged, and upon that ground plaintiff demands the same relief.

Defendant demurs to the complaint and each alleged cause of action therein, upon the ground that it fails to state facts sufficient to constitute a cause of action, and upon the further ground that it is uncertain and unintelligible in certain alleged respects.

While the complaint is subject to the criticism that it is unduly verbose, especially in the paragraphs which allege the wrongs complained of, it is nevertheless sufficiently certain to show the grounds upon which plaintiff demands relief. Whether the facts alleged constitute a cause of action, in our opinion, presents the only question to be determined.

In support of his first cause of action plaintiff bases his right of recovery upon article 1, § 22, of the Utah Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation." The fact that the reservoir which was being cleansed when the alleged injury occurred belonged to the defendant, and was being devoted to a public use, is made the basis of this contention. In other words, plaintiff invokes the constitutional guaranty which is invariably coupled with the exercise of the right of eminent domain.

A statement of the commonly accepted meaning of the term "eminent domain," as understood in jurisprudence may be illuminating in this connection:

"Eminent domain is the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which appertain to its citizens in common, and to appropriate and control individual property for the public benefit as the public safety, necessity, convenience, or welfare may demand.

"Eminent domain is the right of a government to take and appropriate private property to public use whenever the exigency requires it.

"Eminent domain embraces only cases where, by the authority of the state, and for public good, the property of the individual is taken without his consent for the purpose of being devoted to some particular use."

The foregoing definitions are found in Words and Phrases, First Series, vol. 3, at page 2362. Other paragraphs in the same connection are equally...