Salt Lake City v. East Jordan Irrigation Co.

• Decision Date: 26 December 1911
• Docket Number: 2202
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. EAST JORDAN IRRIGATION COMPANY

121 P. 592

40 Utah 126

SALT LAKE CITY v. EAST JORDAN IRRIGATION COMPANY

No. 2202

Supreme Court of Utah

December 26, 1911

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Salt Lake City against the East Jordan Irrigation Company.

From the judgment the parties bring cross-appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

F. S Richards and Ogden Hiles for appellant.

APPELLANT'S POINTS.

If damage shall result to the individual property or right of a stockholder of the respondent company, by reason of the city's carrying out the work of enlarging the canal, he will have his remedy and judgment for damages against the city independently of the judgment in this proceeding. (Hearst & Haggin v. Putnam Mfg. Co. et al., 28 Utah 184, 77 P. 763.) The measure of compensation is, the amount of decrease, if any, in the value of the use of the East Jordan canal for canal purposes, which shall be caused by the enlargement thereof by the city for its purposes. The use by the city for its purposes, being exercised jointly with the use of the respondent company for its said canal purposes. (Chicago & Northwestern Ry. Co. v. Chicago, 140 Ill 309-314; Chicago & Burlington R. R. v. Chicago, 149 Ill. 457-459; Same v. Same, 166 U.S. 227-241-248; Postal Telegraph Co. v. Oregon Short Line Railroad Co., 23 Utah 474-487, 65 P. 735; Stockton & Linden Gravel Co. v. Stockton, etc., R. R. Co., 53 Cal. 11-12; Lewis Eminent Domain [2d Ed.], section 492; [3rd Ed.], section 734.) Where two public uses can stand together without material impairment or impediment of one by the other, they must both so stand. (Postal Tel. Co. v. Oregon Short Line, supra; Salt Lake City v. Salt Lake City Water, etc., Power Co., 24 Utah 249-265, 67 P. 672.) The common universal practice has been, for the legislature to authorize proceedings under the laws of eminent domain by which different easements and rights of way of all descriptions have been imposed on each other and made to stand together without material impairment or impediment of one by the other. Id. Just compensation, as used in the Constitution means a fair and full equivalent for the loss sustained by the taking for public use. (Postal Telegraph v. Oregon Short Line, supra; Chicago & N.W. R. R. Co. v. Cicero, 157 Ill. 48-56; Chicago & Pac. R. R. Co. v. Francis, 70 Ill. 239-240; West Side Elevated Ry. Co. v. Stickney, 150 Ill. 362-382-383; Lewis on Eminent Domain, [2d Ed.], section 462; and cases cited.)

Rawlins, Ray & Rawlins for respondent.

RESPONDENT'S POINTS.

The assignment inquisition cannot be aided by any of the other assignments, nor by matters alleged or argued elsewhere; it must be complete within itself. (Beck v. Baden, 42 P. 845 [Kan.]; O. S. L. Ry. v. Russell, 27 Utah 457, 76 P. 345.)

Where testimony admitted under a ruling which is understood not to be final, the error, if any, is waived by the failure to renew the motion to strike. (Crosett v. Whelan, 44 Cal. 203; Bitzer v. Bobo, 38 N.W. 609; St. Louis & S. F. Ry. Co. v. Brown, 35 S.W. 225; United Order of True Reformers v. Murray, 41 A. 896.)

A statute which attempts to authorize the taking of private property for public use without providing for the assessment of just compensation is unconstitutional and void. (Cooley's Const. Lim. [7th Ed.], 817; Lewis on Em. Domain [3rd Ed.], section 386; Monongahela Nav. Co. v. U.S. 148 U.S. 312; Pennsylvania Ry. Co. v. B. & O. Ry. Co., 60 Md. 263; Welton v. Dickson, 57 N.W. 559; Trippe v. Overacker, 1 P. 695; Sand Creek Lateral Irrigation Co. v. Davis, 29 P. 745; Foster v. Scott, 136 N.Y. 577; Eaton v. Boston, Concord & Montreal R. R. Co., 51 N.H. 504; 12 American Decisions, 147; Canadian Pac. Ry. Co. v. Moosehead Telephone Co., 29 L. R. A. [N. S.] 703, 76 A. 885.)

Any invasion of property, except in case of necessity, either upon, above or below the surface, and whether temporary or permanent, is a taking; as by constructing a ditch through it, passing under it by a tunnel, laying gas, water or sewer pipes in the soil, or extending structures over it, as a bridge or telephone wire. (Lewis, Eminent Domain, [3rd Ed.], section 232.)

The using or enjoying of an irrigation ditch without the consent of the owner is a taking. (Mills, Eminent Domain, section 30; Lovett v. West Virginia Central Gas Co., 65 S.W. 196.)

FRICK, C. J. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

This proceeding was instituted by appellant, a municipal corporation, against respondent, a corporation organized for the purpose of distributing water for irrigation and other beneficial purposes, to condemn, or, rather, to obtain the right to enlarge an irrigating canal, owned by respondent. The proceeding is based on Comp. Laws Utah 1907, section 1288x22, which reads as follows:

"When any person, corporation, or association desires to convey water for irrigation or for any other beneficial purpose, and there is a canal or ditch already constructed that can be enlarged to convey the required quantity of water, then such person, corporation, or association, or the owner or owners of the land through which a new canal or ditch would have to be constructed to convey the quantity of water necessary, shall have the right to enlarge said canal or ditch already constructed, by compensating the owner of the canal or ditch to be enlarged, for the damage, if any, caused by said enlargement; provided, that said enlargement shall be done at any time from the 1st day of October to the 1st day of March, or at any other time that may be agreed upon with the owner of said canal or ditch."

A great mass of evidence was adduced at the trial and is preserved in a bill of exceptions, much of which, however, we deem entirely immaterial.

The controlling facts, briefly stated, are in substance as follows:

The respondent owns and uses, and for more than thirty years has owned and used, an irrigating canal, the head or intake of which is in Jordan River near its source which is in the north end of Utah Lake. The canal thence extends in a northerly direction a distance of about nineteen miles through Salt Lake valley to what is known as Little Cottonwood Greek. The capacity of the canal is 170 cubic feet of water per second, and has been and is used to convey that amount of water from the Jordan River to landowners for irrigation and domestic purposes. The landowners aforesaid are stockholders of respondent, which is a corporation of this state having a capital stock of $ 200,000 divided into 8000 shares of the par value of twenty-five dollars each. The appellant owns 1600 shares, one-fifth of the capital stock aforesaid, and the other four-fifths is owned by about 375 stockholders who are the landowners aforesaid and the water users under the canal. Appellant is also the owner of a canal, which, for convenience, will hereafter be called city canal, which was constructed at about the time when respondent's canal was constructed. The head or intake of the city canal is likewise in the Jordan River, but at a point considerably farther down said stream, so that the intake of the city canal is fifty feet lower in elevation than the intake of respondent's canal. The city canal is about twenty-nine miles in length, and was constructed to convey water from its intake in Jordan River to the inhabitants of Salt Lake City for irrigation, sprinkling streets, and other purposes, not including culinary use, since the water is not potable. If the water as conveyed through the city canal can be conveyed to Salt Lake City through respondent's canal when enlarged and extended as contemplated, then the water conveyed therein could be delivered to the city inhabitants at an elevation of eighty feet higher than this can be done from the city canal, the elevation of which is too low to make it possible to deliver water through it to a large number of the 93,000 inhabitants of Salt Lake City. The principal object of appellant in seeking to obtain the right to enlarge respondent's canal from its present capacity of 170 [40 Utah 132] to 320 cubic feet per second and to construct an extension thereto is to enable it to make an exchange of the unpotable for potable water, and to meet the needs and requirements of a large number of the inhabitants aforesaid for a better water supply. It also appears that respondent's canal is constructed "along the highest possible contour grade at which it was possible to divert water by gravity from Jordan River;" that the canal is constructed over some ravines and gulches and through some ridges and uneven surfaces, so that in constructing it fills and cuts were necessary, and its original cost of construction amounted to about $ 300,000, and through which water is supplied to irrigate and cultivate about 16,000 acres of land, all of which by the use of water conveyed as aforesaid has been redeemed from a barren state; that to supply the needs of the water users along the canal many headgates or diverting appliances are necessary to divert the water from the main canal into lateral ditches for distribution; that many of these diverting appliances are used all the year, while others are used only during the irrigating season, or about one-half of the year. The canal is constructed through practically worthless land, the title to which, except a small portion, is not in respondent. It was also shown that, while the carrying capacity of respondent's canal is only 170 cubic feet of water per second at its narrowest points, yet that at numerous places throughout its length its capacity is much in excess thereof by reason of the irregularity of its banks. The evidence also shows that respondent for a distance of about one and one-half miles owns the land upon which its canal is located,...