Tacea Tsouras v. Brighton & North Point Irr. Co., 7454

• Citation: 227 P.2d 329,119 Utah 354
• Decision Date: 05 February 1951
• Docket Number: No. 7454,7454
• Parties: TACEA TSOURAS, v. BRIGHTON AND NORTH POINT IRRIGATION CO.
• Court: Utah Supreme Court

Page 329

227 P.2d 329

119 Utah 354

TACEA TSOURAS, v. BRIGHTON AND NORTH POINT IRRIGATION CO.

No. 7454.

Supreme Court of Utah.

Feb. 5, 1951.

F. Robert Bayle, George V. Russell, Salt Lake City, for appellant.

J. R. Mulliner, Salt Lake City, for respondent.

LATIMER, Justice.

This is an appeal by defendant from a judgment for damages to plaintiff's crops caused by the overflowing of defendant's canal in 1948, and by seepage from the canal in 1949. The parties are referred to herein as they appeared in the court below.

Plaintiff is the owner of certain real property situated between Redwood Road and the Jordan River in Salt Lake County, Utah, which has been used for farming purposes. The defendant, a corporation, owns and operates the Brighton and North Point Canal that crosses over the real property owned by plaintiff and runs in a northerly direction parellel to and west of the Jordan River. Plaintiff's farm slopes slightly in an easterly direction from the canal toward the river. In order to assist in following this decision, a sketch, not drawn to scale, is set forth:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendant's canal enters plaintiff's property at point A and leaves the property at point B. For the purposes of this case, plaintiff's land is divided into five sections, which are referred to and designated numerically. In 1948 the areas were planted with onions, grain and lucerne, and in 1949 similar crops were anticipated. The trial court made no award for damages for loss of or damage to crops in area #5, so we are concerned only with areas #1, #2, #3 and #4.

All of defendant's points on this appeal can be summed up in its contention that the findings of the trial court on negligence, mitigation of damages and damages are unsupported by the evidence, and therefore, the judgment must be reversed. This being a legal action, under the oft-repeated holdings of this court the findings of the trial judge will not be disturbed if there is any evidence of a substantial character to support them.

It is not claimed that the testimony on behalf of plaintiff is so inherently improbable as to be unworthy of belief. We, therefore, review briefly some of the evidence which we consider sustains the trial court's findings of the negligence of defendant in maintaining its canal in 1948; negligence of the defendant in causing seeping during 1949; mitigation of damages by plaintiff; and, damages. While some of the narrated facts, particularly with reference to seepage, were disputed by witnesses for the defendant, the trial judge resolved the dispute in plaintiff's favor Accordingly, we relate the evidence favorable to her.

The testimony of the witnesses and the photographs of the property and canal permit the following findings: That in 1948 the defendant knowingly permitted bulrushes, vegetation and debris to grow and collect in the channel, which interfered with the free flow of water; that the banks of the canal were not built up and maintained in reasonably good condition; that there were heavy rains during May and June of 1948 which caused the Jordan River to overflow and forced large quantities of water through the canal, but these unusual weather conditions were for a short period of time and the flow of water could have been better controlled; that during the summer of 1948 because of the interference with free flow of the water and the quantity turned into the canal the water overflowed onto plaintiff's property, from point A to point B on the sketch, almost constantly from June until September; that during 1948 officers and employees of the defendant were notified a number of times that the water was...