North Point Consol. Irr. Co. v. Utah & S.L. Canal Co.

• Decision Date: 30 January 1901
• Citation: 23 Utah 199,63 P. 812
• Court: Utah Supreme Court
• Parties: THE NORTH POINT CONSOLIDATED IRRIGATION COMPANY, a Corporation, Respondent, v. THE UTAH AND SALT LAKE CANAL COMPANY, THE SOUTH JORDAN CANAL COMPANY, and the NORTH JORDAN IRRIGATION COMPANY, Appellants

63 P. 812

23 Utah 199

THE NORTH POINT CONSOLIDATED IRRIGATION COMPANY, a Corporation, Respondent, v. THE UTAH AND SALT LAKE CANAL COMPANY, THE SOUTH JORDAN CANAL COMPANY, and the NORTH JORDAN IRRIGATION COMPANY, Appellants

Supreme Court of Utah

January 30, 1901

Appeal from the Third District Court Salt Lake County.--Hon. Ogden Hiles, Judge.

Action by way of a supplemental complaint in an injunction proceeding wherein the equitable issues were first tried and determined in plaintiff's favor for the purpose of obtaining damages.From a judgment for plaintiffdefendants appealed.

AFFIRMED.

Messrs Richards & Varian for appellants.

The decree entered June 20, 1898, upon the remittitur from this court, was the final decree in this case, and, by its execution, the plaintiff waived all right to damages.

"All damages that are the natural and necessary consequences of a nuisance may be recovered in a general allegation of damage but damages that, although the natural, are not a necessary consequence, must be specially alleged or no recovery can be had therefor.The rule may, perhaps, be stated thus: General damages are such as are the necessary consequences of an act but damages that are the natural, although not the necessary, consequence of an act are special, and must be specially averred."Wood on the Law of Nuisance, Section 871.

In First Sutherland on Damages, at-section 420, the author lays down the rule as follows:

"To recover for loss or injury to business there must be a statement of facts from which such loss must arise and the allegation of a loss of that kind."Citing Wampach v. St. Paul Ry. Co.,21 Minn. 364;Agnew v. Johnson,22 Penn. St. 471;Spencer v. St. Paul Co.,21 Minn. 363;Plimpton v. Garniner, 64 Maine 360;Taylor v. Dustin,43 N.H. 493;Potter v. Frement,47 Cal. 165;Dickinson v. Boyle,17 Pick. 78;Parker v. Lowell,11 Gray 353;Adams v. Barry,10 Idaho 361.

E. W. Taylor, Esq., Messrs. C. F. & F. C. Loofbourow, and Messrs. John M. Zane and L. R. Rogers, of counsel for respondent.

The question whether the plaintiff was entitled to any damage depended entirely on how the equitable issues were settled.

The books are full of instances where successful decrees have been entered in the same case, as a result of a hearing of a part of the issues in the case and a reservation of the remainder.We cite the following as illustration: Encyclopedia of Pleading and Practice, vol. 5, page 951, also note 5, same page; Teaff v. Hewitt, 1 Ohio State 519;Forgay v. Conrad, 6 How. 201.

Did the trial court err in permitting plaintiff to file a supplemental complaint?

Section 2998 Code of Civil Procedure provides for the filing of a supplemental complaint alleging facts material to the case which have happened since the filing of the former pleading.

It is a well settled rule that multiplicity of suits and the splitting up of action should be avoided when possible.Ency. of Law (2 Ed.), vol. 8, pp. 678-679; Ency. of Pleading and Practice, vol. 5, p. 714.

"So, also, where, by reason of delay in terminating the action, further damages have accrued to the plaintiffhe may recover beyond the amount of damages alleged."Numbers v. Bowser,29 Ind. 493;Webb v. Thompson, 23 Ind. 428.

That respondent has been wholly deprived of the use of its property during and since 1892 by the acts of appellants.

The proposition therefore becomes, out of necessity, one of general damage and in its most simple forms, to-wit, the assessment of damages that will adequately reimburse respondent for being deprived of the entire use of its property during 1892 and for each and every year since to and including 1898.

There is no set rule laid down by any of the courts for establishing general damages.Brigham v. Carlisle,56 Am. Rpt. 28;75 Am. Dec. 628.

When there is no legal measure of damages the amount is left to the sound discretion of the court.Aldrich v. Palmer,24 Cal. 513;Little v. Tingle,26 Ind. 168;Morris v. Chicago etc,45 Iowa 29;Chopin v. New O. R. R.,17 La. Ann. 19;Southern Ry. Co. v. Kendrick,90 Am. Dec. 332;Wood Nuisance(2 Ed.), sec. 866.

The rule of general damage to this court is not a new one, as in former cases it has settled and determined it the same as other states have done, and in accordance with the principles above enunciated.Lashus v. Chamberlain, 6 Utah, 387;Fair v. Griffith, 9 Utah 416.

The rule universally is that, the question of damages is a matter of discretion for the jury or trial court and when the trial court will not set aside the verdict, the appellate court is very reluctant to substitute its judgment for that of the trial court.To such an extent is the measure of recovery where not susceptible of pecuniary estimate deemed a matter of discretion for the trial court or jury, that the universal rule is that a judgment will not be reversed unless it be indicative of prejudice, passion, partiality or corruption on the part of the court below.69 F. 185;110 Cal. 513;84 Ga. 211;123 Ind. 334;45 Kan. 653;42 La. Ann. 997;40 Mo.App. 674;7 Ohio Dec. 169;92 Va. 627;65 Wis. 409;114 Ala. 152;72 F. 488;120 Ill. 83;98 Iowa 483;90 Ky. 369;62 Minn. 71;14 Misc. 394(N.Y.);61 Tex. 483;13 Wash. 341.

Baskin, J., dissents.

OPINION

PER CURIAM.

The original action upon which these proceedings are predicated was commenced in November 1895, wherein the plaintiff claimed the ownership of certain dams, flumes, ditches, water rights, and water and that the defendants had deprived it of the use and enjoyment of the same since 1892, and still deprived it of the use and enjoyment of its property, and prayed for an injunction and for damages.The equitable issues, only, arising under the complaint, were tried in the court below, and the question of damages was expressly reserved for hearing after the determination of the equitable issues.A decree was rendered for the defendants.On appeal to this court the decree of the lower court was reversed and a decree directed to be entered in favor of the plaintiff, with costs.Thereafter a supplemental complaint was filed, charging that continuously since November, 1895, to June, 1898, defendants had discharged into plaintiff's irrigation system, foul and impure seepage and drainage water through a drain ditch by them constructed and maintained from Decker's Lake to White Lake, as charged in the original complaint, by reason of which the plaintiff was wholly deprived of the use of its irrigation system during the period aforesaid, to its damage in the sum of $ 30,000.

Upon the trial of the legal issues, involving the question of damages the appellants(defendants below) claimed that the court erred in overruling their objection to the further trial or consideration of any issue as to damages, because the court had no jurisdiction to proceed in the premises a final decree having been entered for an injunction and costs.

It is clear from the record that only the equitable issues involved in the case were first tried and decided, and it is equally clear that by agreement of counsel, entered of record, and recited in the decree of the court below, the question of damages was reserved for hearing after the determination of the equitable issues.

The first decree of June 21, 1895, on the equitable issues was final upon the issues submitted, tried and determined, but as to the question of damages which had been expressly reserved for determination until after the equitable issues were disposed of, it was not final until the issue as to damages had been tried.The court very properly left the question of damages until after the main question was determined.The fact that costs had been taxed on the first hearing on appeal and paid on execution, does not change the rule, nor deprive the respondent of its right to proceed to a final hearing of its case as to damages.

Upon the first hearing, the district court rendered its decree in favor of the defendants upon the equitable issues.If this decree had not been reversed, it would have been final as to damages.In that case there would have been no other question to try.That decree found against the plaintiff.Upon appeal the decree was reversed and one entered for the plaintiff.The first decree was final as it disposed of the litigation between the parties against the plaintiff, and an appeal would lie from that judgment.If the plaintiff had no equitable rights under the complaint, it would follow that it was entitled to no damages, as the latter were predicated upon the former, and costs would follow the determination of the case in the Supreme Court, because that determination wholly reversed the case and established plaintiff's right in the premises.The next step was to proceed to a hearing upon the remaining issues that were expressly reserved at the first hearing.But for the reversal by this court there would have been no other issue to try.

The amended complaint was filed November 1895.The decree for injunction was entered June 21, 1898.The plaintiff had been deprived of the use of its property since and including 1892.The supplemental complaint...