Maw v. Weber Basin Water Conservancy Dist., 10823

• Decision Date: 11 January 1968
• Docket Number: No. 10823,10823
• Citation: 436 P.2d 230,20 Utah 2d 195
• Parties: d 195 Orio S. MAW, R. John Maw, and Vadel T. Maw, Plaintiffs and Appellants, v. WEBER BASIN WATER CONSERVANCY DISTRICT, Defendant and Respondent.
• Court: Utah Supreme Court

Page 230

436 P.2d 230

20 Utah 2d 195

Orio S. MAW, R. John Maw, and Vadel T. Maw, Plaintiffs and Appellants, v. WEBER BASIN WATER CONSERVANCY DISTRICT, Defendant and Respondent.

No. 10823.

Supreme Court of Utah.

Jan. 11, 1968.

Glen E. Fuller, Orval C. Harrison, Salt Lake City, for appellants.

Neil R. Olmstead, Ogden, E. J. Skeen, Reid W. Nielson, Salt Lake City, for respondent.

CALLISTER, Justice:

In 1936, Annie C. Maw, grandmother of appellants, granted the Ogden Duck Club a right of way over her property. The agreement contained, among others, the following provision:

In consideration of nonassessable shooting privileges on said shooting grounds of Grantees on days excepting the opening day, Saturdays, Sundays, and holidays, to be enjoyed by, and hereby granted to, the sons of Grantor named as follows, to wit:

Wilmer J. Maw, Rufus J. Maw, Gilbert Maw, and George Maw, Grantor agrees to maintain in a travelable condition the road which is a part of the right of way herein granted to Grantees, * * * provided that in any year the said Wilmer J. Maw, Rufus J. Maw, Gilbert Maw, and George Maw may designate one son for each thereof to shoot and enjoy the privileges hereunder in place of such son's father; but it is expressly understood that blinds on the shooting grounds of Grantees being used at any time by said sons shall be given up to members of the Ogden Duck Club upon request.

The land over which the right of way traversed was purchased in 1957 from the successors in interest of Annie C. Maw to become a part of the Weber Basin Reclamation Project. The project made it necessary for Ogden Duck Club to relocate their clubhouse and they now use a different access.

Prior to entering into the land purchase contract, the sellers advised the Weber Basin Water Conservancy District that unless the shooting privileges were protected there would be no voluntary sale and it would be necessary to litigate the matter in a condemnation proceeding. Whereupon, the District advised by letter that any interests not covered by the contract which might be destroyed or damaged by construction of the dam would be appraised at a later date and an offer to purchase would be made. In reliance on this letter, the contract of sale was executed.

Appellants, sons of Wilmer, Rufus and Gilbert Maw, claim they are the successors to their deceased father's shooting privileges and, in this action, seek to recover the fair market value of the privileges which were terminated.

This is the second time this matter has been before this court. On the first appeal, George Maw, a surviving son of Annie C. Maw, was a party together with his nephews, the present appellants. This court reversed a trial court decision which had been adverse to George and present appellants and, in so doing, stated: ¹

There can be no doubt that at the time the land purchase contract with the United States Government was executed, George C. Maw, one of the appellants and a named son in the 1936 'Right-of-Way Agreement,' was entitled to the shooting privileges provided therein. The court erred in dismissing the complaint with prejudice against the Weber Basin Water Conservancy District, for it is clear that in order to avoid condemnation proceedings it agreed to evaluate and pay for any shooting privileges if the construction of the dam caused their loss. * * * (Emphasis added)

Upon remand, the trial court permitted only George Maw's claim to be submitted to the jury. ² It refused to submit those of the appellants, ruling that, as a matter of law, the 1936 agreement did not by its terms or by interpretation or usage over a period of years or at all run to the benefit to other than the named sons of Annie C. Maw. It ruled correctly.

There was before the trial court a clear and unambiguous agreement which expressly granted shooting privileges to designated individuals. This shooting privilege was in the nature of a noncommercial easement in gross which by the very terms of its creation is limited to those persons specified. It was a mere personal interest in the property of the Ogden Duck Club, and was not assignable or inheritable. ³

Appellants' contention that the District's letter, referred to above, created a third party beneficiary contract in their favor is without merit. This letter, promising compensation for existing interest, could not create new property interests and, of course, the District could not grant an easement in gross in the property of the Ogden Duck Club.

Finally, appellants' claim that the court below erred in striking from their complaint the prayer for punitive damages is also without merit. The appellants, having failed to establish any grounds for compensatory damages, are not entitled to punitive damages. ⁴

Affirmed. Costs to respondent.

CROCKETT, C.J., and TUCKETT, and HENRIOD, JJ., concur.

ELLETT, Justice: (concurring).

I concur in affirming the judgment of the trial court insofar as it held that appellants were not entitled to recover. Another ground for denying recovery goes back to the prior hearing involving this same matter and these same parties. See 15 Utah 2d 271, 391 P.2d 300.

In 1936, Annie C. Maw and the Ogden Duck Club, hereinafter referred...