Stephens Ranch & Live Stock Co. v. Union Pac. R. Co.

• Decision Date: 21 November 1916
• Docket Number: 2849
• Citation: 161 P. 459,48 Utah 528
• Parties: STEPHENS RANCH & LIVE STOCK CO. v. UNION PAC. R. CO
• Court: Utah Supreme Court

161 P. 459

48 Utah 528

STEPHENS RANCH & LIVE STOCK CO. v. UNION PAC. R. CO

No. 2849

Supreme Court of Utah

November 21, 1916

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by the Stephens Ranch & Live Stock Company against the Union Pacific Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

George H. Smith, J. V. Lyle, B. S. Crow and A. R. Robertson, for appellant.

Evans Evans & Folland and P. H. Neeley for respondent.

FRICK J. STRAUP, C. J., McCARTY, J., concurring in part and dissenting in part.

OPINION

FRICK, J.

The plaintiff, a corporation, brought this action against the defendant to recover damages to growing crops and to its lands which, it is alleged in the complaint, were caused by the defendant in constructing certain dams across a natural water course, and thereby causing the annual flood waters flowing therein to be diverted through an artificial ditch and cast upon plaintiff's lands.

The complaint, originally contained three causes of action. The first one, however, was dismissed at the time of trial, and therefore is out of the case. In the second cause of action plaintiff, in substance, alleged that it was the owner and in possession of certain lands in Summit county, which were fully described, and which, it is alleged, are located along the Weber river and adjacent to the line of railroad owned and operated by the defendant; that Anderton creek is a natural water course having its source in the mountains lying north and east of the lands in question; that said Anderton creek, in its natural course, would carry the annual flood waters accumulating therein into the Weber river and away from plaintiff's lands; that in the year 1909 the defendant "wrongfully and in violation of plaintiff's rights constructed a dam across the channel of the said Anderton creek at a point above the plaintiff's premises, * * * by reason of which the said waters of the said creek were diverted from their natural channel"; that the defendant, immediately above said dam and connecting with said creek, had also constructed an artificial channel or ditch "in such a way as to cause all the waters of said Anderton creek to flow over and upon plaintiff's premises," and that said water carried and deposited large quantities of earth, gravel, sand, and debris upon plaintiff's lands; that in the year 1913 the defendant constructed another dam or dike across said creek which caused the natural flood waters thereof to flow through the artificial channel or ditch aforesaid upon and over plaintiff's lands and to deposit thereon large quantities of gravel, sand, and debris which obliterated and destroyed plaintiff's irrigating ditches and injured plaintiff's fences and caused permanent injury to its lands to its damage in the sum of $ 2,000. In the third cause of action the allegations respecting the natural water course, the construction of the dams and the artificial channel or ditch, and the casting of the water by means of said dams and ditch upon plaintiff's said lands, and that said waters damaged and destroyed plaintiff's growing crops in 1910, and in the subsequent years and obliterated its irrigating ditches, etc., were reiterated, and damages in the sum of $ 4,000 were claimed in said third cause of action. The complaint also contained allegations to the effect that the conditions and surroundings were such that the defendant well knew that the doing of the things complained of would result in injury and damage to the plaintiff's lands, growing crops, etc.

The defendant filed an answer in which it denied that it wrongfully did the things complained of; denied that plaintiff was damaged by reason of its acts, or at all; denied that it wrongfully diverted the waters from the Anderton creek, which it admitted was a natural water course as alleged in the complaint. The defendant, in substance, further averred that it had acquired a prescriptive right or easement to divert the waters from Anderton creek by means of the dams and the artificial channel or ditch mentioned in the complaint, and also averred that the dams and ditch were constructed upon lands originally owned by the defendant; that the lands of plaintiff lie below said ditch, and that the plaintiff acquired all of its lands long after the original dam was placed in the creek, which was placed therein in the year 1870; that the dams constructed in 1909 and 1913 were not new dams, but in fact constituted no more than a reconstruction of the old original dam which had been practically washed out and had become useless; that plaintiff's lands were servient and subject to defendant's easement or prescriptive right; that the injury and damage complained of were caused by unusual and unprecedented cloud-bursts over which the defendant had no control, and hence was an act of God.

At the trial the defendant admitted in open court that the plaintiff is, and during all of the times mentioned in the complaint was, the owner of the lands in question, except that portion thereof covered by its right of way.

The following rough sketch or plat will aid the reader to a better understanding of the situation:

[SEE PLAT IN ORIGINAL]

The northwest quarter of section 33, marked "A" on the plat, in the year 1870, and for some time thereafter, was owned by the defendant, and is now owned by a Mrs. Anderton, except a small strip off the west end. The northeast quarter of section 32, lying to the west of section 33, is owned by the plaintiff, including the small strip off section 33 aforesaid. Anderton creek, marked "Creek" on the plat, is the natural water course mentioned in the pleadings. Its source is to the northeast in the mountains, and it flows southwesterly, and if its waters are not diverted it will empty them into in Weber River as indicated on the plat. Weber River flows in a westerly direction. The strip marked "R. R." constitutes the defendant's right of way. The channel marked "Ditch" on the plat is the artificial channel or ditch constructed by the defendant in 1870 when it constructed the railroad. The dam and ditch were constructed to divert the water from Anderton creek to the west. The heavy black lines marked "D1," "D2," "D3," represent the dams and dike before mentioned. In 1870, in order to divert the annual spring and summer floods which are caused by the melting snows in the spring and heavy rainstorms during the summer, the defendant constructed the artificial water course marked: "Ditch" and the dam marked "D1." The dam, it appears, was at times partly washed out by the floods, but it nevertheless was replaced and kept in repair by the defendant until 1909, when it was completely washed out by a heavy storm, and was in that year replaced by what plaintiff's witnesses say was a larger dam, marked "D2" on the plat. The latter dam was again repaired, and, it seems, further enlarged, in 1913, at which time there was also constructed a dike, which is marked "D3" on the plat. The defendant diverted the flood waters of Anderton creek through the ditch by means of the dam marked "D1" continuously from 1870 until 1909 for the purpose of protecting the defendant's track and road at the point where the same crosses Anderton creek, at which point the track passes through a cut. At least a large portion of the flood waters of Anderton creek were thus discharged westerly through the ditch at a point some distance east of the west boundary line of section 33 since the year 1870. In that year, and for some years thereafter, all of section 33 was owned by the defendant, and it thus constructed the ditch and discharged the flood waters of Anderton creek upon its own lands. Many years before 1909--the exact time is not shown--plaintiff's predecessors in interest purchased the lands lying in section 32, which are marked S on the plat. Plaintiff obtained the title to the lands in section 32, including the small strip in section 33, some six or eight years prior to 1909, during all of which years the flood waters of Anderton creek, but, as plaintiff claims, without much injury or damage to its lands, were discharged at the point before stated by means of the dam and ditch constructed in 1870.

In view of the foregoing it was strenuously contended at the trial and is now insisted, by the defendant that it had acquired a prescriptive right to divert and discharge the flood waters of Anderton creek at the point indicated on the plat, that the plaintiff had acquired the lands with full knowledge of defendant's rights and of the prevailing conditions respecting the diversion of said waters, and that for those reasons plaintiff's lands are burdened with its right or easement to divert and discharge the flood waters of Anderton creek as before stated. Upon the other hand, plaintiff contends that, while it may be true that it had acquired its lands subject to the right of the defendant to maintain the dam constructed in 1870, and by means of it and the ditch aforesaid to divert all of the flood waters of Anderton creek that would be diverted by means of that, or another one of the same dimensions, yet that, inasmuch as defendant, in 1909, and again in 1913, had constructed larger and higher dams across Anderton creek, and by such means had diverted larger quantities and practically all of the flood waters of Anderton creek to the artificial channel or ditch, and by reason thereof had caused such increased flood waters to carry and deposit large quantities of gravel, sand, and debris onto plaintiff's lands (all of which would not have occurred if a dam no larger than the one constructed in 1870 had been maintained), and by reason of which its irrigating ditches were filled up and obliterated, its growing crops damaged...