Richins v. Industrial Const., Inc.

• Decision Date: 03 September 1974
• Docket Number: Nos. 73-1957,73-1958,s. 73-1957
• Citation: 502 F.2d 1051
• Parties: William Harrison RICHINS and Amelda S. Richins, his wife, Plaintiffs-Appellees, v. INDUSTRIAL CONSTRUCTION, INC., a corporation, Defendant-Appellant. INDUSTRIAL CONSTRUCTION, INC., a corporation, Third-Party Plaintiff, v. STATE ROAD COMMISSION OF UTAH, Third-Party Defendant and Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1051

502 F.2d 1051

William Harrison RICHINS and Amelda S. Richins, his wife, Plaintiffs-Appellees, v. INDUSTRIAL CONSTRUCTION, INC., a corporation, Defendant-Appellant.

INDUSTRIAL CONSTRUCTION, INC., a corporation, Third-Party Plaintiff, v. STATE ROAD COMMISSION OF UTAH, Third-Party Defendant and Appellant.

Nos. 73-1957, 73-1958.

United States Court of Appeals, Tenth Circuit.

Argued July 11, 1974.

Decided Sept. 3, 1974.

Robert F. Orton of Nielsen, Conder, Hansen & Henriod, Salt Lake City, Utah, for plaintiffs-appellees.

John G. Marshall, Salt Lake City, Utah, for defendant-appellant.

Leland D. Ford, Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., on the brief), for third-party defendant and appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The primary issue before us on this appeal is whether the defendant-appellant road contractor converted a diesel powered water pump, the property of the plaintiffs-appellees, during the course of building a highway for the State Road Commission of Utah. A segment of the highway crossed the plaintiffs-appellees' land.

Assuming the District Court correctly decided in favor of plaintiffs-appellees, was the defendant-appellant contractor entitled to maintain an action over against the State of Utah to obtain indemnity for the conversion liability imposed?

A secondary issue in the case is whether plaintiffs-appellees were entitled to recover damages from defendant-appellant contractor for crop loss caused by interference with irrigation facilities incident to the building of the mentioned highway and, assuming that plaintiffs-appellees were entitled to this recovery, whether defendant-appellant was entitled to be indemnified for this amount also.

This problem had its inception with the Utah State Road Commission's filing of eminent domain proceedings on November 21, 1967, seeking to acquire 21 acres of irrigated land for the purpose of constructing and maintaining a portion of Interstate Highway 80 North. Pursuant to this, on December 18, 1968, an order of immediate occupancy was entered by the Utah State District Court.

The defendant-appellant contractor had on October 24, 1968, entered into a written contract with Utah in which it agreed to act as general contractor to construct the mentioned highway through plaintiffs' property and other lands.

During October 1968, the contractor, in building the road, removed certain irrigation ditches which had served not only the property taken but also the adjacent property of plaintiffs-appellees. These facilities were not restored until the summer of 1970, and as a consequence the crops could not be irrigated on some 42 acres.

The irrigation pump was located on land which was being acquired by the state. At the time here in question, this pump was on the bank of the Weber River. The contractor took possession of the pump and removed it to its property in Grantsville, Utah and later to its yard in Fillmore, Utah. Plaintiffs were advised that they could remove the pump from the contractor's property if they were willing to pay the sum of $8,000 which, according to the contractor, equaled the expense of removal and transportation.

The evidence showed that both the plaintiffs and the defendant pursued their activities on the assumption that the State of Utah would condemn the pump as a fixture. As it turned out, however, this claim and plaintiffs' claim for crop loss were excluded from the state condemnation award. Inasmuch as plaintiffs had not been compensated for the pump and the crops, the present action was filed.

The District Court awarded judgment to the plaintiffs in the amount of $10,000 based on its finding that there had been a conversion of the water pump. The trial court found that the defendant company, by taking possession of and retaining the pump, had been guilty of a conversion. The court reasoned that defendant knew that this was not abandoned property since the plaintiffs had claimed compensation for it in the eminent domain action. The court rejected the contractor's arguments that the pump had been abandoned and that the contractor was justified, therefore, in removing it to his land. It finally held that the contractor had exercised dominion over the pump by taking possession of it, by removing it to its own land, by taking it to Fillmore, Utah which was some distance away and finally by demanding that the plaintiffs-appellees pay $8,000 in order to secure its return. This sum was represented to be the expenses incurred by the contractor in moving the equipment.

The contractor maintains that Richins had abandoned the pump and that he neglected to demand that it be delivered to him. Had he done so, the contractor would have consented to deliver it to him.

The decision of the Utah Supreme Court in Allred v. Hinkley, 8 Utah 2d 73, 328 P.2d 726 (1958), is cited for the proposition that the elements of a conversion are not here established. In Allred an agent was engaged in purchasing seed for the defendant. The agent customarily paid for the seed with his own check and then forwarded a draft to the company payable to himself. The agent, however, changed the procedure, whereby he would pay the grower after the draft was accepted by his principal. In the case litigated he had failed to remit the sums realized from the drafts to the growers. Thereupon a conversion suit was brought against the company by the growers. The Utah court set forth the elements of a conversion action saying that:

A conversion is an act of wilful interference with a chattel, done without lawful justification by which the person entitled thereto is deprived of its use and possession. The measure of damages of conversion is the full value of the property. It requires such a serious interference with the owner's right that the person interfering therewith may reasonably be required to buy the goods. Although conversion results only from intentional conduct it does not however require a conscious wrongdoing, but only an intent to exercise dominion or control over the goods inconsistent with the owner's right.

* * * bu

328 P.2d at 728.

The court concluded that, by taking possession of the seed, the company committed a conversion against the grower in that it interfered without legal justification with the latter's right to possess. The fact that the company did not act knowingly and with intent to invade the rights of the grower was considered inconsequential since there was intent to assume dominion over the property. We fail to see that this decision supports the contractor's position. The indications from the opinion are that Utah follows orthodox criteria in applying the doctrine of conversion.

In the case at bar the facts are, to be sure, complex and somewhat ambivalent. Thus, the conduct of plaintiffs up until the time of the removal of the pump might well have furnished a complete defense to the charge of conversion because it showed a willingness to allow the pump to remain on the land in the hope that there could be some manner of forced sale to Utah. However, there is more to the case than the conduct which occurred at the scene. The contractor removed the pump and did so with knowledge of plaintiffs' property claim in it and, finally, the pump was removed to a distant place. The distance itself may constitute a conversion. See Prosser on Torts (3rd ed.), p. 87. The author states that an unauthorized change of location may amount to a conversion. For example, if a person taking possession of property removes it to a...