Salt Lake City v. Young

• Decision Date: 11 January 1915
• Docket Number: 2532
• Citation: 45 Utah 349,145 P. 1047
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. YOUNG

145 P. 1047

45 Utah 349

SALT LAKE CITY v. YOUNG

No. 2532

Supreme Court of Utah

January 11, 1915

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Complaint by Salt Lake City against Seymour B. Young, Jr., for the violation of a city ordinance prohibiting the pollution of a stream.

Complaint dismissed on defendant's demurrer. Plaintiff appeals.

REVERSED.

H. J Dininny, Aaron Meyers, W. H. Folland and W. W. Little for appellant.

APPELLANT'S POINTS.

The Supreme Court of Utah has held that a right to pollute a stream cannot be acquired by prescription. (Joint Con Irr. Co. v. Utah & S. L. Canal, 16 Utah 246.) No right to befoul a stream supplying water to the city can be acquired by prescription, after it begins to be devoted to such public use. (Sprague v. Dorr, 185 Mass. 10; Inhabitants of Brookline v. Mackintosh, 133 Mass. 215; Kelly v. N.Y., 27 N.Y.S. 164 [affirmed in 89 Hum. 246; 35 N.Y.S. 1109].) The doctrine of "reasonable use" is a part of the common law of riparian rights, and does not apply in this case because the law of riparian rights has been abrogated in Utah both by statute and by judicial decision. (4 Kinney, p. 3618, 2nd Ed; section 1288x5, Compiled Laws, 1907; section 1288x20, Compiled Laws, 1907; Stowell v. Johnson, 7 Utah 215; Nash v. Clark, 27 Utah 215; Wiel, Water Rights in the Western States, section 23.) It is often the effect of the exercise of the police power that it practically destroys the value of property by restricting its use. (Mugler v. Kansas, 123 U.S. 623.) The mere fact that one effect of such regulation will be to exclude some individuals from certain occupations or to prevent them from using their property in some advantageous manner which otherwise would not be unlawful, will not make the regulations invalid. (Com. v. Maletsky, 202 Mass. 241; Com. v. Sisson, 189 Mass. 247; Slaughter House Cases, 16 Wall 36; Powell v. Pa., 128 U.S. 678.)

Thurman, Wedgwood & Irvine and Young & Moyle for respondent.

FRICK, J. STRAUP, C. J., McCARTY, J., concurring.

OPINION

FRICK, J.

Salt Lake City, a municipal corporation, the appellant here, filed a complaint against the defendant, respondent here, charging him with having violated the provisions of the following municipal ordinance, to-wit:

"Sec. 821. It shall be unlawful for any person to construct or maintain any corral, sheep pen, pig pen, chicken coop, stable or other offensive yard or outhouse along any stream of water used by the inhabitants of Salt Lake City, anywhere within ten miles above the point where said stream is taken by said city, where the waste or drainage therefrom will naturally find its way into said stream of water; or to deposit, pile, unload or leave any manure, or other offensive rubbish, or the carcass of any dead animal along any stream of water used by the inhabitants of Salt Lake City, anywhere within ten miles above the point where said stream is taken, where the waste or drainage therefrom will naturally find its way into said stream of water; or to drive, or to permit, or cause any other person to drive any loose cattle, horses, sheep or hogs through any canyon from the stream of which water is or shall be taken for the use of the inhabitants of said city, or to permit any cattle, horses, sheep or hogs to remain in or near, or to pollute any stream of water used by the inhabitants of said city anywhere within ten miles above a point where said water is first taken by said city."

Said ordinance was passed pursuant to Comp. Laws 1907, subd. 15, section 206, which confers certain powers upon the city, and which, so far as material here, is as follows:

"To construct or authorize the construction of waterworks, without their limits; and for the purpose of maintaining and protecting the same from injury and the water from pollution, their jurisdiction shall extend over the territory occupied by such works; and over all reservoirs, streams, canals, ditches, pipes, and drains used in and necessary for the construction, maintenance, and operation of the same, and over the stream or source from which the water is taken, for ten miles above the point from which it is taken; and to enact all ordinances and regulations necessary to carry the power herein conferred into effect."

There is a proviso to this statute requiring the city to provide a "highway" extending through the limits of its jurisdiction, as stated in the statute, on which cattle, horses, sheep, and hogs may be driven.

The complaint, omitting the formal parts, charges the offense in the following terms, to-wit:

"That the said defendant, Seymour B. Young, Jr., being then and there the owner and in possession of that certain tract of land of approximately fifteen acres through which runs that certain stream of water in Parley's canyon known as Parley's creek, at a point within 10 miles above the point where said stream of water is taken by the City of Salt Lake for the use of the inhabitants of said city, to-wit, 6 miles above said intake of said city, unlawfully and willfully did then and there and continuously for 10 days and more prior thereto, permit 27 horses to pollute said stream of water by permitting said horses to be at all times accessible to said stream and to pasture upon and along the banks of the same, and to wade in and to drink from the same, and to drop their dung into said creek, and to run at large upon said tract of land where the waste and drainage therefrom naturally finds a way into said stream, contrary to the provisions of section 821 of chapter 29 of the Revised Ordinances of said Salt Lake City, in such cases made and provided."

The respondent demurred to the complaint, setting forth seven distinct grounds why the complaint should be held insufficient. About all of the grounds may, however, be considered under the head that the complaint is defective in substance in that the facts therein alleged do not "constitute a public offense." The district court sustained the demurrer and entered judgment dismissing the complaint and discharged the respondent. The city appeals and seeks a reversal of the judgment on the ground that the court erred in sustaining the demurrer and in entering judgment dismissing the complaint.

The questions presented for decision may be more easily understood by giving respondent's reasons why the demurrer was properly sustained, and hence I shall follow that course. Those reasons, as I understand respondent's counsel, in substance are: (1) That the ordinance in question is "not authorized by any law or statute of the State of Utah"; (2) that said ordinance violates article 1, section 7, of the Constitution of this state, which provides, "No person shall be deprived of life, liberty, or property without due process of law"; (3) that it also violates section 22 of article 1 aforesaid, which provides, "Private property shall not be taken or damaged for public use without just compensation"; (4) that said ordinance also violates section 1 of the fourteenth amendment to the Federal Constitution; and (5) that subdivision 15 of section 206 (which I have set forth above) is void because it is in conflict with the several constitutional provisions referred to above. It is only fair to state that counsel concede that both the ordinance and statute admit of a construction which, if adopted, might not invade the constitutional provisions referred to.

It has heretofore been determined by the Supreme Court of Utah that whenever the pollution of a stream by any person amounts to a public nuisance under Comp. Laws 1907, section 3506, the offender may be criminally prosecuted. People v. Burtleson, 14 Utah 258; 47 P. 87. Under that section any person who is injuriously affected by the nuisance may sustain an action to enjoin or to abate the nuisance. Since People v. Burtleson was decided, the Legislature passed a further act (Comp. Laws 1907, section 1113x), in which a "nuisance" is defined as follows:

"Whatever is dangerous to human life or health, and whatever renders soil, air, water, or food impure or unwholesome, are declared to be nuisances and to be illegal, and every person, either owner, agent, or occupant, having aided in creating or contributing to the same, or who may support, continue, or retain any of them, shall be deemed guilty of a misdemeanor."

See Laws Utah 1899, p. 66.

The violation of the foregoing section constitutes a misdemeanor and, in addition to the right of an action by an individual, the board of health is also authorized to abate such a nuisance. Again, by Comp. Laws 1907, section 4274, the befouling of the "waters of any stream, well, or spring of water used for domestic purposes," in the manner in that section defined, is declared a nuisance. It is apparent therefore that the Legislature of this state has exerted the police power of the state in different ways for the purpose of protecting and maintaining the natural purity and wholesomeness of the waters flowing in the streams of this state. The reason why such great care is manifested by the Legislature to maintain the purity of our streams may perhaps be attributed to the fact that this state lies wholly within the arid belt, and for that reason the common law may have been deemed insufficient to afford adequate protection. Moreover, the common-law rule that waters may not be appropriated and diverted from a stream has been entirely abrogated in this state, and every person may appropriate and divert any quantity or all of the waters flowing in any stream, provided he uses such water for a beneficial purpose. I advert to these matters primarily for the purpose merely of directing attention to the ever present fact that riparian rights in the streams of this state, if not entirely...