McKell v. Spanish Fork City

• Decision Date: 22 January 1957
• Docket Number: No. 8494,8494
• Citation: 305 P.2d 1097,6 Utah 2d 92
• Parties: d 92 Rebecca McKELL, Plaintiff and Appellant, v. SPANISH FORK CITY, a Municipal Corporation, Marcellus Nielson, J. W. Anderson, Ed. M. Beck, Arthur Grotegut, Bert D. Isaac, J. Rowe Lewis, and Lindsey B. Snell et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 1097

305 P.2d 1097

6 Utah 2d 92

Rebecca McKELL, Plaintiff and Appellant, v. SPANISH FORK CITY, a Municipal Corporation, Marcellus

Nielson, J. W. Anderson, Ed. M. Beck, Arthur

Grotegut, Bert D. Isaac, J. Rowe Lewis,

and Lindsey B. Snell et al.,

Defendants and Respondents.

No. 8494.

Supreme Court of Utah.

Jan. 22, 1957.

Elias Hansen, Salt Lake City, for appellant.

R. H. Andrus, Spanish Fork, Christenson, Paulson & Novak, Provo, for respondents.

CROCKETT, Justice.

This action was commenced by A. T. McKell against Spanish Fork City, Utah County, the State Road Commission and certain officers and employees. Before it came on for trial, A. T. McKell died and his surviving wife Rebecca McKell was substituted as plaintiff.

Recovery is sought for damages to land, improvements, and personal property on a portion of the McKell farm resulting from flood control measures taken by the defendants to control the water drainage usually carried by the Spanish Fork River during the extraordinary runoff which occurred in 1952. The winter of 1951-2 had been one of unusually heavy snowfall which remained in the mountain water sheds longer than usual due to a late cold spring. This was followed by an abrupt change into an unseasonal warm spell producing an unprecedented runoff and flooding of mountain streams and pediments throughout the state.

The exceptional situation made it apparent that flooding in the area was imminent. Officials of Spanish Fork City, Utah County, and the State Road Commission together with owners of property near the river began planning concerted action to forestall and minimize flood damage. An understanding was reached whereby those governmental units would undertake to enlarge the river bed to contain the waters in the channel and otherwise control them. Incidental to this, they required adjacent property owners, including A. T. McKell, to sign a release from liability for damage that might result to property in connection with the work. Due to the wording of the release, there is serious question whether it would preclude the present plaintiff, Mrs. Rebecca McKell, from recovery in this action. In view of the considerations, later discussed herein, which we find determinative, it is unnecessary to resolve that matter.

The McKell property is situated eastward from Spanish Fork between the town and the mountains and lies a short distance north of the Spanish Fork River which courses out of the canyon of the same name. As the flood waters overflowed above the McKell property, they threatened to inundate the whole area and damage several properties: a public school and a seminary building, a railroad bridge and trestle, the main arterial north-south highway of the state (U.S. 91), a large concrete bridge structure and other lands and residences in the northeast part of the city and adjacent thereto. In order to prevent flooding and damages to the properties just mentioned the defendants used an existing gravel road running eastward from the northeast corner of the plaintiff's land as a basis upon which to raise a dyke. This admittedly caused greater flooding on the McKell property than otherwise would have occurred, gouging out a large gulley in it, destroying part of a corral, feedmanger, fence and carrying away some farm equipment.

After the commencement of this suit, a stipulation was entered into by the parties whereby Utah County and the state of Utah each paid to McKell $2,000 to compensate in part for the damage thus caused by the diversion of water across his land. In consideration of the $4,000 so paid, the action was dismissed as to those defendants and the right expressly reserved to litigate his right to recover against Spanish Fork City and its officers.

A trial by jury resulted in a verdict for the plaintiff against Spanish Fork City in the amount of $2,072. This the court set aside and entered judgment of no cause of action, from which plaintiff appeals.

One of the bases advanced in justification of the action of the trial court is that under the emergency which existed the flood water was a 'common enemy' against which property owners could protect themselves by individual or collective action. This doctrine has been recognized since early times in the English law. The courts held that flooding of the sea was a common enemy against which necessary measures could be taken as a matter of preservation of property and self without liability for resultant damage to others. ¹

In this country the rule has been applied to navigable rivers subject to extensive overflow. ² However, the principle that a riparian owner may protect his property against flooding when to do so will cause damage to others has not received universal acceptance. Some courts hold to the contrary as to floods of an ordinary nature, ³ while others permit such action on the ground that even ordinary flood waters are a common enemy. ⁴ Others reach a similar result upon the theory that waters flooding beyond the natural channel of a stream are surface waters and subject to control under the common enemy theory and permit each landowner to protect himself as best he can. ⁵

However, it is generally recognized that riparian owners may embank and protect their lands against the overflow of extraordinary floods, even though damage to the lands of others is caused thereby. ⁶ An extraordinary flood is one which is not foreshadowed by the usual course of nature, and is of such magnitude and destructiveness as could not have been anticipated or provided against by the exercise of ordinary foresight. ⁷ The privilege to embank against floods, whether ordinary or extraordinary, is qualified to the extent that the owner who undertakes protective measures must not obstruct the flow of a natural water course, and he is liable for damage resulting to adjacent landowners if he is negligent in erecting his protective devices.

From the facts here it is clear that we are not concerned with the rules which pertain to surface waters in the commonly accepted meaning of that term in adjudications of this type. That term as so used means water diffused over the surface of the ground and derived generally from falling rains or melting snow, and it continues to be such until it reaches well defined channels wherein it customarily flows at which time it becomes part of a stream. ⁸ Once part of a stream, it does not again become surface water simply because if overflows the...