Tripp v. Bagley

• Decision Date: 19 November 1929
• Docket Number: 4717
• Citation: 282 P. 1026,75 Utah 42
• Court: Utah Supreme Court
• Parties: TRIPP v. BAGLEY

282 P. 1026

75 Utah 42

TRIPP v. BAGLEY

No. 4717

Supreme Court of Utah

November 19, 1929

Rehearing Denied December 17, 1929.

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by George W. Tripp against E. C. Bagley. Judgment for plaintiff, and defendant appeals.

REVERSED, and a new trial granted, unless plaintiff shall file a remittiture of $ 1,000.

King &amp King and Stewart, Alexander & Budge, all of Salt Lake City for appellant.

Wm. B. Higgins, of Fillmore, for respondent.

CHERRY, C. J. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

CHERRY, C. J.

This action is to recover damages, both actual and punitive, for flooding water upon lands belonging to the plaintiff and his assignor, Maud Tripp Morehouse, during each of the irrigating seasons of the years 1919, 1920, and 1921. The wrongful acts complained of and the damages suffered for each season are stated in six separate causes of action in the plaintiff's complaint. Except as to time, the several causes of action are similar, and in substance set forth that the plaintiff (or his assignor) was the owner of certain lands in Juab county valuable for growing crops and pasturing animals, and upon which crops and pasture were growing; that the defendant wrongfully entered upon the lands described, and constructed ditches and canals thereon, into which he diverted large quantities of water; that the ditches were not of sufficient capacity to carry the waters turned into them; that the ditches became filled with sand, gravel, and sediment, and overflowed and discharged large quantities of water, sand, and gravel upon the adjoining lands, causing the same to become soaked and saturated, and destroying the crops and pasture growing thereon; that a certain road leading from the plaintiff's house on the lands described to a public highway had been soaked, saturated, obstructed, and destroyed; and that, by reason of the wrongful acts complained of, he had been deprived of the use of his farm and the means of access thereto, to his damage in a sum specified for each season.

Each cause of action contained an allegation that the acts complained of were done willfully, unlawfully, maliciously, and wantonly, with intent to vex, annoy, oppress, and injure, etc., on account of which punitive damages were claimed.

Upon general denials by the defendant and a claim of right to use ditches and natural channels for conducting water over the lands claimed to have been injured to his own lands adjoining below for irrigation, the case was tried by jury, resulting in a verdict for the plaintiff for $ 2,100, of which $ 650 was for actual damages sustained by the plaintiff, $ 450 actual damages sustained by the plaintiff's assignor, and $ 1,000 punitive damages.

The appeal is from a judgment for $ 2,100 entered upon the verdict.

The principal complaints of the appellant are that the court erred concerning the measure of damages applied in the case and in submitting to the jury the question of punitive damages. Other assignments of error are stated in the brief, but we think them so plainly untenable as not to warrant special mention.

As proof of the damages claimed, the court permitted the plaintiff to prove the usable or rental value of the lands affected and the extent to which that value was diminished by the acts of the defendant complained of, and the jury was instructed:

"You are instructed that if you find that the plaintiff is entitled to recover in this action, you should award him in actual damages such sum as, in the exercise of discretion, you deem will be reasonable compensation for the diminution, if any, in the usable value of said lands, or some portion thereof, belonging to or in the possession of the plaintiff and his assignor, Maud Tripp Morehouse, or either of them, in any or all of the years 1919, 1920, and 1921, any such diminution to be determined by the difference, if any, in the value of the use of such lands, during said periods without floods, seepages, or consequent conditions, of the character here complained of, and the value of such use during the continuance of the floods, seepages, or conditions caused thereby, if any you should find, during said periods. And you are instructed that in estimating the amount of such damages, if any, you should take into consideration the value of the crops if any which the plaintiff and his said assignor may or would, excepting for any such floods, seepages, or the conditions caused thereby, have made from said lands, during any or all of said periods, and the injuries, if any, sustained by the plaintiff and caused by any such floods, seepages, or conditions caused thereby, by reason of his being deprived of the use of a portion of his said lands for pasturage, or by reason of the passage to and from, or over, his said lands, being rendered more inconvenient or expensive, if you should find any of these facts from the evidence; and you should take into consideration all other facts and circumstances shown by the evidence, bearing upon the injuries, if any, to said lands, or the property rights incidental thereto."

Appellant contends that the admission of the evidence referred to and the instruction quoted were erroneous, because the action was a plain case for damage to crops, and that the measure of damages for the destruction or injury to crops is the difference between the market value of the crop before and after the alleged damage, citing Cleary v. Shand, 48 Utah 640, 161 P. 453, and Sharp v. Cankis Gianulakis, 63 Utah 249, 225 P. 337.

If the case at bar was an action alone for the destruction of crops, the rule of damages applied in the cases cited would be applicable. But this action is clearly more than an action to recover for injured crops. It is expressly alleged that, by reason of the acts of the defendant, the "plaintiff was deprived of the use and enjoyment of his said farm, including the means of ingress and egress to and from the same." The evidence of the plaintiff generally supports the allegations of his complaint, and was to the effect that not only were his crops injured, but his use and occupation of his lands seriously interfered with by the flooding of water and the depositing of sand and gravel thereon and the damage and obstruction to his road. To limit the plaintiff to damages for the injury to particular growing crops under the circumstances would be quite unjust. It is apparent from his evidence that he suffered additional damages.

8 R. C. L. 480, says:

"Since the owner of real estate is entitled to use it in its present condition, as against one who injures such property he is entitled to compensation for any depreciation in its market value, or value for use, or for any permanent injury to the land itself, or for...