Utah Lake Irr. Co. v. Jensen

• Decision Date: 23 November 1916
• Docket Number: 2862
• Citation: 161 P. 677,49 Utah 19
• Court: Utah Supreme Court
• Parties: UTAH LAKE IRR. CO. v. JENSEN

161 P. 677

49 Utah 19

UTAH LAKE IRR. CO. v. JENSEN

No. 2862

Supreme Court of Utah

November 23, 1916

Appeal from District Court, Third District, Hon. C. W. Morse, Judge.

Action by the Utah Lake Irrigation Company against Hannah C. Jensen. From the judgment, plaintiff appeals.

AFFIRMED.

Stewart Stewart & Alexander for appellant.

Smith &amp McBroom for respondent.

STRAUP C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plaintiff, the condemnor, brought this action to condemn for canal purposes a strip of ground, 22 1/2 to 50 feet in width and 955.1 feet long, diagonally through the defendant's lands, an improved farm of about 25 acres, and to assess the damages. The jury awarded the defendant $ 210 for the strip taken and $ 1,042.50 for damages to adjoining lands not taken. The controversy chiefly relates to alleged injuries to lands not taken. There is no substantial disagreement between the parties that as to such lands, the defendant was entitled to recovery for all the present and future damages naturally and reasonably incident to a proper construction and operation of the canal, but not as to such as may result from an improper or negligent construction or operation of it. In that connection the plaintiff proposed this request to charge:

"The defendant in this case has attempted to show that the defendant's land will be water-logged or water-soaked by reason of the construction and operation of the plaintiff's canal. You are instructed to disregard and not consider all such evidence."

It is noticed that the request is not predicated on the theory of a water-logged or soaked condition of the land due to a negligent construction or operation of the canal. It rather assumes that such a condition could result only from an improper construction or negligent operation. At least that is what is argued for the request. The court refused it, and charged this:

"In determining whether the remaining land has been damaged by the taking of the land for the right of way and the construction and operation of the canal thereon, and the extent of such damage, you should consider, so far as shown by the evidence, the effect the taking of the smaller tract of land in the manner in which it is taken from this farm will have upon the convenient and economical operation, irrigation, and conduct of the farm. You should also consider, so far as shown by the evidence, the question as to whether in the operation of the said canal by the plaintiff in an ordinarily careful and prudent manner, water will escape therefrom where it crosses the defendant's land, and will water-soak and injuriously affect the remaining land situated below the canal; and from all the evidence in the case determine what the depreciation, if any, in the fair market value of the remainder of the land was on February 5, 1914, by reason of the taking of the 96/100 of an acre and the construction and operation thereon of plaintiff's canal."

It is noticed the charge is predicated on a water-soaked condition of the land, resulting from a careful and prudent operation of the canal. The plaintiff first asserts that there is no evidence to show that any of the land not taken will be water-logged or soaked, and hence that the court erred in submitting such a question to the jury. We think there is evidence to support a finding in the defendant's facts on the submitted hypothesis. True, the evidence as to that is in direct and irreconcilable conflict; but the plaintiff accomplishes nothing here by pointing its finger, as it does, to that portion of the evidence most favorable to it and doubling its fists on that against it.

The further contention made is that any substantial damage to adjoining lands from seepage of waters from the canal would so necessarily result from a negligent...