Thomas E. Jeremy Estate v. Salt Lake City
| Decision Date | 19 September 1935 |
| Docket Number | 5300 |
| Citation | 49 P.2d 405,87 Utah 370 |
| Court | Utah Supreme Court |
| Parties | THOMAS E. JEREMY ESTATE v. SALT LAKE CITY |
Appeal from District Court, Third District, Salt Lake County William H. Bramel, Judge.
Action by Thomas E. Jeremy Estate against Salt Lake City. Judgment for defendant, and plaintiff appeals.
AFFIRMED.
Walter Wright and Herbert Van Dam, Jr., both of Salt Lake City, for appellant.
Fisher Harris, City Atty., and E. R. Christensen, Deputy City Att. both of Salt Lake City, for respondent.
FOLLAND, J, being disqualified, did not participate.
On July 24, 1924, Thomas E. Jeremy, now deceased, by written contract gave Salt Lake City a 35-foot right of way across his lands upon which to build a drainage canal. The terms of the contract covering consideration read as follows:
The canal was completed in the fall of 1924, and occupied practically the entire width of the 35-foot right of way. The excavated material, called "spoil-bank," was deposited along the banks of the canal outside of the right of way and on the Jeremy property occupying a strip of land anywhere from 30 feet to 70 feet in width. The contract contains the following provisions:
On May 8, 1931, the Thomas E. Jeremy Estate, a corporation, successor in interest to Mr. Jeremy, instituted this action for damages against the city for depositing such spoil-bank upon the Jeremy property, and requested the court for an order compelling the city to remove the bank. The lower court decided in favor of the city and the estate has taken this appeal.
The principal question in the case is that of the statute of limitations. It is the city's contention that the action is barred by the section of the statute applicable to actions upon written instruments (Comp. Laws Utah 1917, § 6466, subd. 2, now Rev. St. Utah 1933, 104-2-22. subd. 2). On the other hand, the estate contends that it is not an action upon a written instrument, but is one to recover the reasonable value of the property taken for public use. In reply to this contention the city claims that the case was not tried on any such theory in the lower court.
It is our opinion that the estate is in error in its contention. In the first place, Mr. Jeremy in his lifetime received full compensation for the right of way. It was the consideration recited in the contract. It makes no difference that that consideration may seem inadequate to the present owners of the land. It satisfied Mr. Jeremy and must be presumed to have been accepted by him as the reasonable value of the land taken, and the reasonable value of the damage done to his remaining land by the taking of said right of way and its use and occupation for canal purposes. Neither Mr. Jeremy nor his successor in interest have a right to again collect for that damage. So much for the 35-foot right of way.
What about the strip occupied by the spoil-bank? This deposit was not a necessary part of the construction of the canal. See Rev. St. Utah 1933, 104-61-4, sub. 2. It could have been hauled away or could have been disposed of otherwise without the least effect upon the construction, and without interfering with the use of the canal for the purpose for which it was intended. The bank serves no public purpose, nor is it of any public benefit. Inferentially, at least, both parties concede this to be true: The city by claiming, as it did, that the deposit was so made at the request of Mr. Jeremy; the estate by praying that the court make an order requiring the city to remove the bank.
Furthermore the estate in its complaint quotes the clauses of the contract we have set out above and then alleges in effect a breach of that paragraph pertaining to building that canal in such a manner as not to injure the Jeremy property. These allegations were unnecessary, if the plaintiff sought...
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Farmers New World Life Ins. Co. v. Bountiful City
...from the construction or operation of a public improvement are not within the statute's protection. See Thomas E. Jeremy Estate v. Salt Lake City, 87 Utah 370, 49 P.2d 405, 407 (1935) ("Damages arising out of the carelessness or negligence or indifference in the construction of a utility up......
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Sale v. State Highway & Public Works Commission
...of the text De Vore v. State Highway Commission, supra; State v. Lindley, Tex.Civ.App., 133 S.W.2d 802; Thomas E. Jeremy Estate v. Salt Lake City, 87 Utah 370, 49 P.2d 405; Person v. Miller Levee Dist. No. 2, 202 Ark. 876, 154 S.W.2d 15; Shortle v. Terre Haute & I. R. Co., 131 Ind. 338, 30 ......
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Hall v. Utah State Dept. of Corrections
...v. Salt Lake City, 99 Utah 362, 366-67, 106 P.2d 1028, 1030 (1940). ¶ 24 Consequently, we held in Thomas E. Jeremy Estate v. Salt Lake City, 87 Utah 370, 375, 49 P.2d 405, 407 (1935), that a cause of action against the government was barred where a notice of claim was not filed with the app......
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Brigham Young University v. Paulsen Const. Co., 19638
...so well understood that we have found only one case that has even obliquely dealt with the issue. In Thomas E. Jeremy Estate v. Salt Lake City, 87 Utah 370, 374, 49 P.2d 405, 407 (1935), we applied the almost identical predecessor of section 78-12-23(2) to a case in which a breach of contra......