State By and Through Road Commission v. Tanner, 12688
| Decision Date | 17 July 1973 |
| Docket Number | No. 12688,12688 |
| Citation | 30 Utah 2d 19,512 P.2d 1022 |
| Parties | d 19 STATE of Utah, By and Through its ROAD COMMISSION, Plaintiff and Appellant, v. George TANNER et al., Defendants and Respondents. |
| Court | Utah Supreme Court |
Vernon B. Romney, Atty. Gen., Salt Lake City, George S. Ballif, Special Asst. Atty. Gen., Provo, for plaintiff-appellant.
E. J. Skeen, of Skeen & Skeen, Salt Lake City, for defendants-respondents.
Appeal from an award by jury verdict for drainage water alleged to have been taken in a condemnation action by the State where defendants were awarded $75,000 for taking and severance damages, excluding the instant claim, incident to a highway project, where the drainage phase was separated by stipulation, for future adjudication. The later award by the court, sitting without a jury, of $38,800 for such drainage on account of waters interfered with, is attacked on this appeal, and we reverse the trial court's decision in this respect. No costs to anyone.
Defendants and their predecessors installed drains in the subject property to get rid of water which was soaking the land, which drainage installation, at their own expense, was designed to rid the land of undesirable water in order to make the Tanner tract productive rather than useless,--and not to put the water to a beneficial use in the appurtenant land. The Tanner interests were awarded some kind of rather indefinable rights in this unwanted and troublesome water in the also troublesome decree 1 so that the Tanner interests actually sold the water for a use by somebody else, at a point of diversion about five miles upstream. Suffice to say that the fact that the Tanner interests claimed and sold waste water doesn't prove much, and especially with respect to ownership, the decree to the contrary notwithstanding, which we think not apropos here. We think the damages awarded for loss of water collected in these drains are not compensable, because: 1) They are based on speculation; 2) are consequential, and 3) are subject to the defense of sovereign immunity.
As to 1): The drains were installed by defendants to rid themselves of the water in order to preserve the value of their land, and not to collect for sale to others. Utah should not have to subsidize such sale, or the loss of it. The record reveals that, except for a decree recognizing the drains and the waste water therein and permitting its diversion about five miles upstream, it appears that the subdividing of property upstream, making it residential instead of agricultural, would diminish the seepage flow that appears to have been feeding the drains rather than from a flow of established aquifers. Because of this uncertain circumstance, the damages in this case become speculative, which are not assessable by a jury or other arbiter of the facts.
As to 2): Except for some doubtful impact of State v. Rohan, 26 Utah 2d 202, 487 P.2d 857 (1971), on the previously established concept of immunity from payment for consequential damages, precedent in this State certainly would treat this waste water as being non-compensable on the basis of consequentiality and non-severability. To sanction any other result under the water cases preceding this one, would be something akin to saying that one living on a freeway would have a vested right to have people throw beer cans on his property in perpetuity so that he could sell them for recycling purposes.
As to 3): Defendants' claim obviously is not structured on a taking of land for a public purpose. It appears to be a tort claim for interfering with some drains or interfering otherwise in a diminution in the flow of waste water. Again I refer to Mr. Justice Ellett's concurrence. The State in this suit did not ask to take any water or water rights for a public purpose at all. The best defendants can urge here, besides such interference, would be on the basis of severance damages. Both parties seemed to have recognized that this theory was not tenable since the matter of damages for the actual taking and for severance damages were resolved and no one is contesting those matters,--the parties in apparent agreement recognizing the difference with respect to the waste water by stipulating that this question could be resolved not by the jury as the other issues were, but by the court in a separate trial.
The drains were installed, not to use the water beneficially on the land, but to get rid of it so the land could be used beneficially,--ultimately to sell it, as trash, so to speak, to someone else who could use it one way or another. The sale of this water well may have been accomplished for a purpose that did not even resemble a beneficial use thereof. The claim for compensation for this waste water being one sounding ex maleficio, and not on appropriation for beneficial use upon the claimant's land, defendants, if they had any claim at all, should have pursued an action under the Utah act having to do with waiver of immunity, which was not done, and which should resolve this case into a remand with instructions to vacate the judgment relating to this waste water. In this respect, I refer again to Mr. Justice Ellett's concurrence.
This case appears to be analogous to Weber Basin Water Conservancy District v. Gailey 1 wherein this court held that a landowner has suffered no compensable damages where the construction of a public improvement lowers the water table and thus removes moisture from the land. The court reiterated the principle, which is herein controlling, that the owner of the land does not have any right to the waters percolating through the soil before they come into his land nor after they depart therefrom. 2
I concur but would like to add the following:
The appellant, hereafter called Commission, brought an action under the eminent domain statute to condemn a parcel of land belonging to the respondents. The value of the land taken and severance damage, i.e., the damage caused to the land not taken because of the construction, were fixed by a jury at $75,000. No complaint is made by either party as to this sum. This should have been the end of the matter in connection with the eminent domain statute. 1
The defendants had drain ditches in their lands to lower the water table, and the water thus collected in the drain ditches was personal property and was as such sold to others.
The court permitted the defendants to claim damages against the Commission for an alleged diminution in the amount of water drained from its land collected in the ditches and sold. There was no pleading made by defendants claiming such damages and no notice ever filed with the Attorney General as required by Sec. 63--30--12, U.C.A.1953 (Replacement Vol. 7A). Therefore, the claim made could not be asserted against the Commission even if immunity was waived so as to permit recovery.
I am unable to find in the statutes of this State where sovereign immunity is waived for a claim such as the one being made here. The matters for which immunity from suit is waived are set out in Title 63, Chapter 30, U.C.A.1953 (Replacement Vol. 7A), and are:
Sec. 5. Contractual obligations.
Sec. 6. Recovery of real or personal property.
Sec. 7. Negligent operation of a motor vehicle.
Sec. 8. Dangerous conditions of a highway.
Sec. 9. Dangerous conditions of public building.
Sec. 10. Negligent acts or omissions of an employee within the scope of his employment[30 Utah 2d 23] --with stated exceptions thereto.
Although the attorney for the Commission prior to trial stipulated that the amount of loss to the defendants for diminution of drain water could be tried at a separate hearing, that would not, and could not, waive any sovereign immunity of the Commission or make a cause of action were none otherwise existed. An attorney representing the Commission would not be able to change the law. Only the legislature of this State could do that.
As to the rights of the defendants in and to the drain water, they had none whatsoever until they got it in their ditches. They had made no beneficial use of the water and did not have any right to have the water table remain at any particular level. Anyway, the level would vary from year to year according to the amount of rain which falls and to the amount of irrigation water placed on higher land.
As farm lands would be subdivided and no irrigation water used thereon, the water table would likewise fall. Would anyone claim that diminution caused thereby of water in defendants' ditches would give them a cause of action against the subdivider or against a farmer who elected not to irrigate? It would seem that if they have a right to compel the state to refrain from lawful activity which diminishes the amount of water which they collect in their drain ditches, they should likewise have the same rights against the subdivider and the farmer who by their lawful conduct caused the water table to be lowered.
I would reverse the trial court on two grounds: First, the claim made cannot be maintained against the Commission because the defendants have no rights to the water until they collect it in their drain ditches; and second, if the claim could have been maintained against the Commission, it is forever barred now because the defendants did not file their claim with the Attorney General within one year after it arose as required by Sec. 63--30--12, U.C.A.1953 (Replacement Vol. 7A).
The plaintiff Road Commission seeks to reverse that part of the judgment of the district court in condemnation proceeding which awarded to the defendant Tanner $38,800 for disruption of flow and diminution of water by its construction of a highway known as the 'BYU Diagonal' across Tanner's land between Orem and Provo.
This case was divided into two parts. The first was a jury trial as the value of the defendant's land taken, together with...
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