Sehy v. Salt Lake City

• Decision Date: 22 July 1912
• Docket Number: 2341
• Court: Utah Supreme Court
• Parties: SEHY v. SALT LAKE CITY

126 P. 691

41 Utah 535

SEHY v. SALT LAKE CITY

No. 2341

Supreme Court of Utah

July 22, 1912

Rehearing Denied September 28, 1912.

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

Action by Anna Sehy against Salt Lake City.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED.

H. J Dininny and Aaron Myers for appellant.

W. R. Hutchinson and A. R. Barnes for respondent.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

In the complaint it is alleged that the city negligently obstructed the flow of the waters of Jordan River, and suffered and permitted it to be obstructed, and caused the waters to back up and overflow plaintiff's premises, to her damage. It is alleged the obstruction consisted "of wire and timbers and other material extending across said stream at or near" a bridge across the river. The case was tried to the court and a jury, and resulted in a judgment for the plaintiff, from which the defendant appeals.

It is not necessary to consider the numerous assignments of error, for we think the defendant's motion to direct a verdict ought to have been granted. The river at the place in question courses through the corporate limits of the city. Near the place of the alleged obstruction the city had constructed and maintained a bridge across the river. Near the bridge and south of it a dam and headgates in the stream were maintained and used by an irrigation company to divert water. The dam was made of piling driven in the river, and was entirely separate from the bridge.

Of course, the city cannot be held liable for the injury unless it resulted from a negligent discharge of some duty within the scope of its corporate powers, and ministerial in its nature, or unless it itself, or its agents or officers, acting within the scope and in pursuance of its corporate powers and benefits, and not merely within its governmental powers or functions, negligently or wrongfully obstructed the flow and caused the injury. It is not alleged, nor is it claimed, that any duty was imposed on the city to keep the stream in a safe condition and free from obstruction.

And no such duty was imposed on the city. (O'Donnell v. Syracuse, 184 N.Y. 1, 76 N.E. 738, 3 L. R. A. (N. S.) 1053, 112 Am. St. Rep. 558, 6 Ann. Cas. 173; A. L. Lakey Co. v. Kalamazoo, 138 Mich. 644, 101 N.W. 841, 67 L. R. A. 931, 110 Am. St. Rep. 338.)

What is alleged and claimed is that the city negligently extended a chicken wire or netting across the stream near the bridge and suffered and permitted it there to remain, and by such means obstructed the flow and caused the overflow. The evidence shows that a...