White v. Salt Lake City, 7652

• Decision Date: 04 January 1952
• Docket Number: No. 7652,7652
• Citation: 121 Utah 134,239 P.2d 210
• Parties: WHITE, v. SALT LAKE CITY.
• Court: Utah Supreme Court

Page 210

239 P.2d 210

121 Utah 134

WHITE, v. SALT LAKE CITY.

No. 7652.

Supreme Court of Utah.

Jan. 4, 1952.

William D. Callister, A. C. Melville, Salt Lake City, for appellant.

E. R. Christensen, Homer Holmgren, and A. Pratt Kesler, City Attorneys, all of Salt Lake City, for respondent.

WOLFE, Chief Justice.

This is an action for damages against Salt Lake City, for the alleged wrongful laying of water pipes in the street abutting plaintiff's property. Plaintiff is the fee owner of property abutting both sides of two dedicated streets which meet at right angles. His 80 acres adjoins both sides of Marie Avenue for a distance of 1300 feet and both sides of Valley Street for 1700 feet. The property is situated in Salt Lake County outside the corporate limits of the defendant municipality. The defendant laid a 48-inch steel water pipe line, three feet under the surface of the streets for the purpose of carrying water to Salt Lake City users. The trial court granted defendant's motion to dismiss the amended complaint and plaintiff appeals.

Plaintiff's theory is that an actionable trespass has been committed. He seeks to have the pipe line removed or damages in the alternative. His argument is summarized in his brief as follows:

'Point I--Ownership of property abutting both sides of a street includes ownership of the street itself, subject only to the use of the same by the public for highway purposes.

'Point II--The unauthorized laying of a water pipe line by a municipality in a street outside of its corporate limits which line in no way benefits or serves the abutting property, is an additional burden upon the property constituting an invasion of the abutting owner's rights and is actionable.'

Unless otherwise noted, all statutory citations may be found in Utah Code Annotated, 1943. All italics have been added by the author.

Plaintiff relies on:

36-1-1--'In all counties all * * * streets * * * laid out or erected as such by the public * * * are public highways.'

36-1-7--'By taking or accepting land for a highway the public acquires only the right of way and incidents necessary to enjoying and maintaining it. A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the middle of the highway.'

The defendant cites 78-5-4, contending that the County of Salt Lake owned the streets in question, and it was upon this statute that the District Court granted the order of dismissal.

78-5-4--'Such maps and plats, when made, acknowledged, filed and recorded, shall operate as a dedication of all such streets, alleys and other public places, and shall vest the fee of such parcels of land as are therein expressed, named or intended for public uses in such county, city or town for the public for the uses therein named or intended.'

But the plaintiff contends that this court construed the forerunner of the above quoted statute in Sowardzki v. Salt Lake County, 36 Utah 127, 104 P. 111, 116, and he quotes from the opinion as follows: 'While the word 'fee' is used in the section, [Laws 1890, P. 76 c. 50, identical meaning as 78-5-4, supra] it is clear from what follows that it was not intended that the fee of the corpus or land itself should pass, but only the fee to the surface, and this only for public use for all purposes of a street or highway. The fee mentioned in the statute was thus what is known as a limited or determinable fee, and was created for a special purpose or purposes only, and hence was subject of abandonment.'

In the Sowadzki case, supra, a plat had been filed and recorded, dedicating a certain Wabash Avenue in Dankowski Park to the Salt Lake County Commissioners for public use. The park was in fact a cultivated field and appellant Sowadzki's house stood in the middle of the platted street. Section 1116, Compiled Laws of 1907, provided, "that a road not used or worked for a period of five years ceases to be a highway." Because Sowadzki had resided in the platted street for more than five years, the highway was held to have been abandoned. It actually never came into existence. To rationalize the meaning of the 1890 Act which stated that the fee vested in the county, the court stated that it was a determinable fee subject to abandonment. The language of the court, quoted by plaintiff that 'only the fee to the surface' passed was wholly gratuitous and was made without intending to determine the sub-surface uses which the county commissioners may deem to be intended for the public.

Plaintiff maintains that the fee to the street is in the abutting owner with an easement in the public for use as a highway, plus the laying of gas, water and sewer pipes etc., necessary to serve the abutting property. His contention that conduits of public utilities or foreign municipalities which do not serve the abutting property constitute an additional servitude is borne out by the following authorities : Sterling's Appeal, 1886, 111 Pa. 35, 2 A. 105; Kincaid v. Indianapolis Natural Gas Co., 1890, 124 Ind. 577, 24 N.E. 1066, 8 L.R.A. 602; Ward v. Triple State Natural Gas & Oil Co., 1903, 24 Ky.Law Rep. 116, 74 S.W. 709; Van Brunt v. Town of Flatbush, 1891, 128 N.Y. 50, 27 N.E. 973; and Hofius v. Carnegie-Illinois Steel Corp., 1946, 146 Ohio St. 574, 67 N.E.2d 429. The rule announced in these cases is that abutting property owners have a right in the roadway paramount to all uses except public travel, and additional servitudes cannot be imposed without payment of compensation, Kincaid v. Indianapolis Natural Gas. Co., supra.

The problem here involved is to determine, if possible, a consistent interpretation of the various statutory provisions found in our code which concern the uses to which public highways and streets may be put. Applicable provisions are found under the subject of Highways, 36-1 and 36-3; Plats and Sudivisions, 78-5-4 and Powers of County Commissioners, 19-5-39. First, it is important to note that under 78-5-4, supra, the fee in the streets of a platted subdivision vests in the political unit where the property is located. Thus the public rights in streets dedicated by filing a plat seem to be identical, whether the street is in a city or in a county outside any incorporated municipality. The provision involved in the Sowadzki case "that a road not used or worked for a period of five years ceases to be a highway" was repealed by the Laws of 1911, page 287. But Sections 78-5-6, 7 & 8 still provide means whereby contiguous property owners may petition the governing body of the city or the board of commissioners of the county to alter or vacate any street. If the governing authorities are satisfied that neither the public interest nor any person will be materially injured, the petition to vacate shall be granted. In such event the 'limited or determinable fee' spoken of in the Sowadzki case would then revert to the abutting property owner. But as long as the dedicated street remains platted as a public thoroughfare, the statutory provision that the fee is vested in the county commissioners can only be interpreted to mean that the rights of the county, acting through its commissioners, are superior to those of the abutting property owner insofar as the normal use of the street is concerned. We have clearly changed by statute the old common-law rule insofar as streets in platted subdivisions are concerned.

This plain interpretation of 78-5-4 is further amplified by 36-3-3 which states: 'Water mains, sewers and sewer pipes may be laid by permission or upon the order of the board of county commissioners, and shall be located in the roadway section of the highway off the paved portion thereof, at a sufficient depth to keep the roadway secure, and to prevent a nuisance thereon; * * *' Section 19-5-39 states: 'They [the county commissioners] may grant franchises along and over the public roads and highways for all lawful purposes, upon such terms, conditions and restrictions as in the judgment of the board may be necessary and proper * * *.'

The provisions enumerating the powers of the county commissioners clearly indicate that the Legislature did not regard the dedication to the public of a street in a platted subdivision as the surrender of an...