Marti v. American Smelting & Refining Co.
| Decision Date | 13 December 1900 |
| Court | Utah Supreme Court |
| Parties | JOHN MARTI, Respondent, v. THE AMERICAN SMELTING AND REFINING COMPANY, Appellant |
Rehearing denied January 11, 1901.
Appeal from the Third District Court Salt Lake County.-- Hon. A. N Cherry, Judge.
Action by plaintiff to recover damages alleged to have been caused by defendant company dumping slag into the channel of Little Cottonwood Creek so as to retard the flow of water and cause the same to spread out over plaintiff's land. From a judgment for plaintiff defendant appealed.
REVERSED.
Messrs Dickson, Ellis, & Ellis for appellant.
D. H. Wells, Esq. for respondent.
This action was brought by the plaintiff to recover damages for the alleged flowing of his land by defendant dumping slag into the channel of Little Cottonwood creek at a point below plaintiff's land, so as to partially retard the flow of the water in said creek, as it passes over plaintiff's land, and preventing the same from freely passing out in its natural channel.
The case was tried before a jury, and a verdict rendered in favor of the plaintiff. Defendant appealed to this court.
The grounds upon which this appeal is taken are: First, that there is absolutely no evidence showing, or tending to show, that the defendant in any way caused or had anything whatever to do with the injury to the plaintiff's property, and, that, on the contrary, the uncontradicted evidence shows that defendant had nothing whatever to do with the injury, and was not in the remotest degree connected therewith. Second: That the court erred in its instructions to the jury.
Among other things, the court instructed the jury as follows:
"It is alleged in plaintiff's amendment to his complaint, and the evidence of the plaintiff also shows, that the defendant in this case succeeded to the property on which the said slag dump was placed on June 21, 1899, and also that the damage to the plaintiff's premises for the year 1899 occurred on and after said date of June 21; you are therefore instructed that in the consideration of any damages you may find due the plaintiff, by reason of said obstruction, you should limit your inquiry to such damages as occurred on and after June 21, 1899."
By this instruction the court assumes that the plaintiff had proven his damages since the twenty-first day of June, 1899, and the jury were only limited in their inquiry as to the...
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