Peay v. Salt Lake City

• Decision Date: 27 April 1895
• Docket Number: 515
• Citation: 40 P. 206,11 Utah 331
• Court: Utah Supreme Court
• Parties: GEORGE T. PEAY, RESPONDENT, v. SALT LAKE CITY AND OTHERS, APPELLANTS

40 P. 206

11 Utah 331

GEORGE T. PEAY, RESPONDENT, v. SALT LAKE CITY AND OTHERS, APPELLANTS

No. 515

Supreme Court of Utah

April 27, 1895

APPEAL from the District Court of the First Judicial District. Hon H. W. Smith, Judge.

Action by George T. Peay against Salt Lake City, the Utah and Salt Lake Canal Company, the South Jordan Canal Company, the North Jordan Canal Company, and the Draper or East Jordan Canal Company for damages and for injunctive relief. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Messrs Richards & Richards, Mr. E. D. Hoge, Mr. J. G. Sutherland and Mr. Andrew Howatt, for appellants.

Mr. M M. Warner and Mr. Ira W. Kenward, for respondents.

The rule is elementary that where an official board or commission authorize and direct the keeping of a record of its doings and of its proceedings, whether provided for in the instrument creating such board or not, the record so kept and adopted by them is the best evidence of the proceedings of such board or commissioners. 1 Wharton Ev. § 661; 2 Wharton Ev. § 1131; 1 Greenleaf Ev. § 116-125. Plaintiff did not show a documentary title to his land. The evidence showed that he was in possession, and plaintiff testified that he was owner of the land. Defendants objected to plaintiff proving any further source of title to the land in question on the ground that a prima facie title had been proven by plaintiff, and that the burden of proof was on defendants to show title by prescription, and upon such admission by counsel for defendants the court sustained defendants' objection and refused to allow plaintiff to prove any further source of title. Elliott v. Kemp, 7 M. & W. 312. Defendants offered no proof to deny or modify plaintiff's title, and under the admissions of the defendants' counsel, the court rightly instructed the jury that plaintiff had proven title. One in possession of real estate is presumed to be the owner thereof. Wintz v. Morrison, 17 Tex. 372; Thompson v. Bacharis, 15 N.Y. 581; Doty v. Bardisk, 83 Ill. 473; Sears v. Taylor, 4 Cal. 38; Keane v. Connover, 21 Cal. 305; Association v. Willard, 48 Cal 617; 4 Cal. 70; 9 Cal. 1; Bard v. Rollins, 30 Cal. 408; 2 Wharton's Ev. § 1332; Stat. vol. 2 (1888), § 3133; Elliott v. Kemp, supra.

BARTCH, J. MERRITT, C. J., concurs.

OPINION

BARTCH, J.:

The plaintiff brought this action to recover $ 30,000 damages, which he claims he sustained by reason of the flooding of his land by the defendants. The jury returned a verdict in his favor, assessing damages at $ 8,750, and the court rendered judgment for that amount and for costs of suit. A motion for a new trial, regularly made and argued, was denied, and thereupon the defendants appealed to this court, both from the judgment and from the order denying the motion for a new trial, assigning many errors, only a few of which it will be necessary to consider. As shown by the record, it is alleged in the complaint, substantially, that at the time of the commission of the grievances complained of, and at the time of the bringing of this suit, the plaintiff was the owner and in the possession of 1,617.50 acres of land, situate in Utah county, in this territory, and bordering on the west, southwest, and south by the waters of Utah Lake; that he, with his family, lived on and occupied the land; that the Jordan river is the natural outlet of Utah Lake; that on the 15th day of April, 1891, against the rights of the plaintiff, the defendants wrongfully and jointly erected, and ever since have "jointly maintained numerous dams across the said Jordan river, near said lake, to a great height, and have thereby, during all of said time, caused the water in said lake to rise four feet and nine inches above its natural level, and wrongfully obstructed and stopped the natural flow and drainage" of the water of said lake through said river, and have thereby caused the water in said lake "to back up on plaintiff's said land, and flood and overflow and stand on the same, whereby 1,324.44 acres of hay grass and pasturage growing thereon have been wholly destroyed, to the damage of the plaintiff in the sum of $ 13,240;" that all the land, "by reason thereof, has ever since been, and now is, wet, swampy, and covered with water, alkali, and other salty substances, and is thereby rendered useless and valueless, to the damage of the plaintiff in the sum of $ 13,240;" and that by reason of the premises aforesaid, the locality of said land has been made, and now is, dangerous to the health of himself and family, and their dwelling house during all of said time, rendered uncomfortable for habitation, to his damage in the sum of $ 3,520. It is also alleged that the defendants threaten and will continue to wrongfully maintain the dams across the river unless restrained. The prayer is for judgment against the defendants for the sum of $ 30,000, and for injunctive relief to forever prohibit them from so obstructing the natural drainage of the lake.

It will be noticed that the cause of action set out in the complaint is based on the tortious acts of the defendants. The plaintiff charges that they erected and maintained dams and obstructions across the outlet of the lake, and thereby prevented the natural flow of the water from the lake, and caused it to rise and damage his land. These acts of the defendants are characterized as wrongful and in violation of his rights. It must be conceded that this action is well founded, and if the defendants have wrongfully erected dams and obstructions in the river, as alleged in the complaint, and have thereby injured the plaintiff's land, there can be no question that they are liable to him in damages, for no person has a right to obstruct the natural flow of a stream, so as to cause injury to another, against his will; and, where a person is charged with the commission of acts of this character, he must either deny the truth of the charge, or, if he admit its truth, show his authority for the doing of the acts, in order to avoid liability. The defendants in this case, in their answer, specifically deny the allegations of the complaint relating to the wrongful erection of dams and obstructions across the Jordan river, and to maintaining them there wrongfully, to the damage of the plaintiff. In further answer to the complaint, they specifically set out the construction of various canals by them, through which the water of the Jordan river was diverted for purposes of irrigation, and set up a right, for such purposes, to erect and maintain dams in the river, derived from the plaintiff and numerous other parties owning land bordering on the lake. This right or grant was obtained for a valid consideration, was reduced to writing, and executed by the parties. It was fully set up in the answer, and was not controverted by the plaintiff. Nor was its validity questioned at all during the course of the trial. Under this grant, as between the parties thereto, the defendants are entitled to perpetually maintain dams in the river, and to raise the water of the lake to a height not exceeding 3 feet and 3 1/2 inches above low-water mark. The defendants denied that they had maintained dams wrongfully, but admitted that they had maintained them in accordance with the grant, but not in excess of it. The grant was properly set out in the answer to negative the allegations in the complaint that the defendants had wrongfully erected and maintained dams in the river. The issue thus raised was whether the defendants had wrongfully erected and maintained dams and obstructions in the river, and thereby damaged the plaintiff.

The first question raised in the record is whether the judgment in this case is in accordance with the issue raised in the pleadings. Counsel for the defendants insist that the plaintiff at the trial was permitted to recover by proving a case fundamentally different from that alleged in the complaint. The correctness of this position must be tested by reference to the proceedings on the trial. An examination of the record shows that the first evidence which the plaintiff introduced in support of the allegations of his complaint was the grant set out in the answer of the defendants, and that thereafter all his testimony was introduced for the apparent purpose of establishing the fact that the dams were maintained at a greater height than 3 feet and 3 1/2 inches above low-water mark, and that the alleged damages proceeded from the fact that the dams were so maintained. It is manifest that the allegations of the complaint that the dams were wrongfully erected were abandoned, and yet it cannot be successfully contended that they were not material, for they constituted the foundation of the action. The cause of complaint was, not that the defendants had violated the conditions of the grant, or that they had raised the dams to a height exceeding 3 feet 3 1/2 inches, and thereby injured the plaintiff by flooding his land, but that they had wrongfully erected and maintained them, and wrongfully obstructed the drainage of the lake. If these allegations were true, then the acts of the defendants were in violation of the rights of the plaintiff ab initio, and they were liable to him for all damages caused by the wrongful construction of the dams, and he would be entitled to have them removed, and to have the water flow in its ancient channel, unobstructed by artificial means. This would be a much more far-reaching result than, and an entirely different one from, that caused by maintaining the dams at a greater height than that provided for in the grant. It is evident that at the trial the plaintiff proceeded on the theory that all that was necessary to entitle him to recover was to show that the defendants had committed a breach of the conditions...