Moyle v. Salt Lake City

• Decision Date: 06 January 1947
• Docket Number: 6328
• Citation: 111 Utah 201,176 P.2d 882
• Court: Utah Supreme Court
• Parties: MOYLE et al. v. SALT LAKE CITY

176 P.2d 882

111 Utah 201

MOYLE et al. v. SALT LAKE CITY

No. 6328

Supreme Court of Utah

January 6, 1947

Appeal from District Court, Third District, Salt Lake County Allen G. Thurman, Judge.

Affirmed.

E R. Christensen, Gerald Irvine and Alonzo P. Kesler, all of Salt Lake City, for appellant.

Thomas D. Lewis, David T. Lewis, Oscar W Moyle, Jr. and Daniel T. Moyle, all of Salt Lake City, for respondents.

Larson, Chief Justice. McDonough and Wade, JJ., concur. Wolfe, Justice, dissenting. Justice, not participating.

OPINION

Larson, Chief Justice.

This case came to the writer on reassignment.

Plaintiffs recovered a judgment against defendant for the use of water owned by plaintiffs, but taken and withheld from them by defendant. From this judgment defendant appeals, assigning 25 asserted errors as grounds for reversal. The assignments however present only two questions for consideration of this court.

1. Does plaintiffs' complaint state a cause of action?

2. If plaintiffs are entitled to recover what is the proper measure of damage?

A proper consideration of these questions impels an understanding of the background out of which this suit arose. Many years before this action was commenced, plaintiffs became the owners of certain water rights in Big Cottonwood Creek which along with water rights of other parties were diverted from the natural channel through the Big Cottonwood Tanner Ditch. In all there were 1795 units or shares. In due course, the Big Cottonwood Tanner Ditch Company, a water corporation, (hereafter called the corporation) was organized among such water users and most of the water transferred to such corporation. Some of the users did not so transfer all their rights. Plaintiffs transferred 23 shares taking stock in the corporation therefor, and retained and refused to transfer to the corporation 22 3/4 shares or units of their water right. The water right thus retained had been, and continued to be, diverted through the Tanner Ditch.

In 1920, defendant (hereinafter called the City) entered into an exchange agreement with the corporation whereby the City obtained the right to divert from Cottonwood Creek into its watermains all of said waters to which the corporation was entitled, except 2.591 second feet during the six summer months of the year, and 1.436 second feet during the winter months, which water the city was to deliver to the stockholders of the company through suitable watermains to be installed by the City. The city also undertook to provide the company with irrigation water by delivering into the Big Cottonwood Tanner Ditch, near its point of diversion from Cottonwood Creek, certain specified quantities of non-potable water from Utah Lake, brought to the point of delivery by means of canals and pumps. Since Moyle and others had in the Big Cottonwood Tanner Ditch, potable waters from Big Cottonwood Creek which were not involved in the exchange agreement, friction developed, among other things, over the pollution of this water by the admixture of the Utah Lake water. As a result thereof, on June 28, 1926, the City commenced in the District Court of Salt Lake County a proceeding against the Moyles to condemn said water rights of the Moyles in the Big Cottonwood Tanner Ditch, and take such water for the benefit of the city and its inhabitants, and in lieu thereof to furnish Moyles with other waters suitablefor irrigation, and on July 23, 1926, obtained from the court an order authorizing it to take immediate possession of such waters.

To this complaint, Moyles filed a demurrer and a motion to strike, and no further proceedings in court were had in said cause until October 1937, when Moyles called up for disposition the demurrer and motion. The demurrer was sustained by the court, the City refused to amend and on January 7, 1938, caused the case to be dismissed, without notice to Moyles. In April 1939, Moyles presented to the City a claim for $ 4,150 for the use and possession of such waters from the date of the aforesaid order of possession to the date of claim. When the City refused payment, this action was commenced. Moyles recovered judgment for the amount and the City appeals, presenting the questions posed at the beginning of this opinion.

1. The question as to whether the complaint states a cause of action revolves upon a number of factors which we note in order. (a) Where a condemnor by court order obtains possession of the property sought to be condemned, and then surrenders the property and dismisses the action before the assessment of damages, may the condemnee maintain a suit for value of the use and possession during the occupancy? We are not concerned at this time with questions as to the right of the property owner to recover expenses incurred in protecting his property rights, and in defending against condemnation proceedings which have subsequently been abandoned. Nor do we have involved here questions of losses due to depreciation in market value during pendency of the proceedings, nor profits in sales lost because of the proceedings to condemn, nor of damages actually done to the freehold. We are here confined to the narrow question of right to recover for the loss of the use and occupation because of the condemnor having possession of the property while the suit was pending. The City argues extensively, and cites authorities that a municipality is not liable for damages upon abandonment of condemnation proceedings. That is all beside the point. The authorities relied upon do not involve cases where the City took actual possession of the property pendente lite.

The right of eminent domain is an arbitrary power, and so the constitution has limited, confined and guarded the exercise of the right. It provides that private property shall not be taken or damaged except for purposes of public utility and for adequate compensation. This prerogative is only allowed where the letter of the law, permits it and then only under careful observance of the rules prescribed for the protection of the owner. Owen v. City of Springfield, 83 Mo.App. 557; Cooley Const. Lim. 651. The majority of the decisions hold that a rule that a municipality is not liable for damages sustained by the property owner resulting from the institutions of the condemnation proceeding which are subsequently abandoned does not apply in instances of actual damage to the freehold, or where the condemnor takes possession of the property. See Ann. 31 A. L. R. 364, 18 Am. Jur. p. 1041. And many of the cases hold the City liable for all damages resulting to the property owner from the institution of the suit. Such cases are unimportant here since this action rests upon the theory that possession was taken and no damages are claimed except for the use and possession of the property. Such an action will lie. Salt Lake Investment Co. v. Oregon Short Line R. Co., 46 Utah 203, 148 P. 439, affirmed 246 U.S. 446, 38 S.Ct. 348, 62 L.Ed. 823. See Anno. 121 A. L. R. 88. See also Hullin v. Second Municipality of New Orleans, 11 Rob. La., 97, 43 Am. Dec. 202; Feiten v. City of Milwaukee, 47 Wis. 494, 2 N.W. 1148; Graff v. Mayor , etc., of Baltimore, 10 Md. 544; United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; Jacobs v. City of Seattle, 100 Wash. 524, 171 P. 662, L. R. A. 1918E, 131; Kincaid v. City of Seattle, 74 Wash. 617, 134 P. 506, 135 P. 820. Such damages need not be recovered in the condemnation proceeding, but may be sought by an independent action or proceeding. This is on the ground that any damages on account of such proceedings is not a damage to the property itself, but is of a personal character. Utah Copper v. Montana-Bingham Con. Min. Co., 69 Utah 423, 255 P. 672. State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A. L. R. 373, followed by annotation, 18 Am. Jur. 1016.

(b) Have Moyles pleaded facts to bring them within the rule? In the complaint, it is alleged that Moyles were the owners of certain water rights, that the City commenced an action in the district court against Moyles, and in such action procured an order from the court granting the City immediate possession of Moyles' water; and that the City took such possession, and continuously maintained possession thereof until the commencement of this action; that the City dismissed the action against Moyles wherein it had secured the order for and possession of the water, but continued to keep possession of, and to use the water; that the reasonable value of the use and possession of the water during the period it was so held by the city was $ 4,150 to plaintiffs' damage in that sum; that the claims had been presented to the City, but was rejected and payment refused. These facts are sufficient to bring the case within the rule announced in section (a), supra.

(c) The City contends that the complaint is deficient because it does not allege that Moyles would have put the water to a beneficial use had the City not taken it. No such allegation is necessary to state a cause of action. The demurrer admits that Moyles owned the water right and were deprived of the use thereof by the action of the City. If Moyles could not have put the water to a beneficial use, that may be a defense, or a mitigation of damage, but it is not a matter that must be specifically pleaded to state a cause of action. This is not an action to try title to a water right, which right is admitted by the demurrer, but to recover damage for being deprived of the use thereof.

(d) The City contends that the complaint should and does not allege that the waters were taken into possession of the City, and also that there is no allegation of damage. There is no merit...