Castagno v. Church
552 P.2d 1282
Utah
1976
Check Treatment

*1 proc- prived property without due of their

ess of law. Massey-Ferguson Corporation Credit

In Peterson,17

v. defendant filed a counter- alleged wrongful

claim for an

taking of his equipment. This claim was

predicated ground on the defendant was

deprived property prior of his without

hearing. The trial court dismissed Supreme

counterclaim. Court Ida-

ho, declared their statute unconstitutional provide judicial

for its failure to su- certain,

pervision of the order and for a judicial hearing validity

immediate on the taking property. The court

further the coun- reversed dismissal of

terclaim and remanded cause for fur- proceedings.

ther

Defendants further contend the trial dismissing

court erred their counter-

claim. this With contention we should

agree. taking pursuant to the writ unlawful,

replevin must be deemed since affidavit,

the writ was issued requisite

which did not set forth the facts 64B(b).

mandated Rule Castag

Albert J. and Bernice CASTAGNO V. no, wife, Respondents, his Plaintiffs and Church,

Melvin CHURCH and Esther C. his wife, Appellants. Defendants

No. 14412.

Supreme Court Utah.

Aug. 5, 1976. 16, supra.

17. Note *2 payment the At the time the balance. sit- contract executed there was well was property, upon the and the vendees uated granted right to use the well. were farming operations, Plaintiffs commenced They from the pumped and water using by were to cease well ordered Engineer. Subsequently, plaintiffs owing tendered the balance under the con- demanding conveyance of the remain- tract ing acres, and the one second foot of have been water. Defendants unable procure rights for the well. plaintiffs fully trial court found The performed obligations their under the con- tract; perform had failed to defendants requiring delivery the contract part water, they and were second foot of one The at the time of to do so. unable property in had a value real acre, per provided one second of $1500 was available. wa- foot of water Without ter, per value acre was the reasonable convey- The trial court ordered acre. property with a rebate on ance of the price purchase Tooele, defendants for Jeppesen, Alan K. appellants.

and appeal, defendants contend un- On Tooele, Watson, perform- Edward of frustration of the doctrine der respondents. ance, performing, they excused from were not have performance should specific MAUGHAN, de- imposed. indicated Justice: The evidence been assignment of certain acquired an judgment from a fendants appeal Defendants they able have not been plaintiffs, rights, but specific performance granting application, to divert purchase change secure a together a rebate with No water to the well. affirm foot of land. one second price for 40 acres of We is available. plaintiffs. other water costs award Plaintiffs, vendees, this action initiated is in of frustration doctrine a uniform performance of seeking specific a defense here. invoked as appropriately defendants, contract, wherein estate real depends this doctrine applicability of land, acres of vendors, agreed convey 40 nearly total destruction or on the total (including rights all water together with which, contempla in purpose a well. in and to water) foot of one second parties, transaction was tion of both pos Although performance remains De- contract made. parties executed the terms, performance sible, expected value of 14, According to its 1973. cember has been seeking be excused $32,000. Upon party price contract the total event; su which destroyed, by a fortuitous conveyed 20 $16,000, vendors payment actual, not literal pervenes cause an remaining acreage plaintiffs. acres to the de- Where conveyed upon failure of consideration.1 rights were and water Restatement, Contracts, § 1. 288. proper,

fense of frustration issue is The trial court not err did equities, granting plaintiffs specific in the performance whether considered light policy, placing public require of sound long The rule has es the contract. disruption the risk destruction or tablished in that a has the vendee equilibrium plain- upon performance contract on or defendant sist the vendor to the tiff, perform extent the latter is able to with *3 purchase price equal abatement in the purpose . . . The a is to of contract the value of the deficiency or defect.4

place performance upon the risks the of promisor, parties, and relation the of the TUCKETT, HENRIOD, J., J., and C. contract, of terms the and circumstances concur. surrounding its exam- formation must be ined to whether be fair- determine it can CROCKETT, (concurring). Justice ly inferred that risk that the of the event I concur judgment. in affirmance of the supervened has cause frus- alleged the difficulty concerning But due to the the reasonably tration was not foreseeable. damages, measure of desire make this If it was foreseeable there should have normally comment: It is true that the provision contract, it in the awardable the failure to deliv- provision gives absence of such a the er one second of foot water be the would rise the that inference the risk was However, value of the water. insofar as assumed. discover, point we can that not raised was . The required courts have a either in the this district court or in court. promisor seeking to excuse from himself fact, evidence, In the own performance obligations prove of his through expert value, their on Marcellus that the risk frustrating event Palmer, was: reasonably not foreseeable that Now, Q you appraise what do this of counterperformance totally value or property then to be acre without nearly totally destroyed, for frustration water ? is no defense it if was foreseeable or A subject property had some has promisor, controllable or if coun- improvement got done on it. It’s a terperformance remains valuable. fairly good my fence on it and to 2 [Citations] opinion that in its state that is native any

At the time without irrigation, execution it’s worth contract, about good defendants knew was no there acre. If it had a $500 existing right They water it right my opinion un would be duty procure thé right, dertook such a it would be worth an acre. they provision made ho in the contract court plaintiffs damages awarded them, to excuse if the Engineer did theory. on their is, own That a diminution grant change application not their to divert in value of the land because of lack wa- a Furthermore, to the well. ter; and then scaled it on down based contract, conveyance basis price acreage. contract Inasmuch as land, of 40 may not acres be deemed party any neither made has issue merely frustrated because defendants were court, join affirming in this I matter convey right.3 unable the water judgment. Lloyd Murphy, v. 48, 2. 25 758, (1973) ; Cal.2d P.2d 153 In Re P.2d 212 Kan. 512 487 47, (1944). Hayhurst, Okl., 50 Estate P.2d 343 478 (1970) ; Levy Wolff, 367, v. 294 46 Cal.2d Bauman, Or., v. Tindula

3. 532 P.2d 785 Caveny Asheim, (1956) ; 945 202 Or. P.2d 195, (1975). (1954). 274 P.2d 281 Pope, 4. Murdock v. 7, 156 Colo. P.2d Bauge Bros., (1964) ; Whitsitt, De Inc. v. question. Defendants and filed an the defendants. transferred three one second foot same artesian basin as was the well transferred to as administratrix of her husband’s ond feet of water which estate point permit was the sufficient water on which well sold the from the ELLETT, The defendants with all water water, will furnish. Seller price, The water tric riod of said Contract an drilled deed the Ten have exclusive use of said from said transfer the #-including following it [*] Upon payment Sellers electric of diversion. Engineer would not allow the owned came pump plaintiff’s father had died and the (10) land and well Sellers one second foot of which problem a State [*] required further acres from a different basin and Well Justice application (or in paragraphs: pump plaintiff. water to the final contract of the well was This said will claimed to Engineer [*] of said second feet of water to had been drilled. 2 second feet of water until and owned 40 rights to well agree in full The defendants owned the water Two for said well. . complete flow; however, (dissenting). convey by warranty easterly property having thereupon to the to Deed therewith [*] plaintiff’s to have the until property, (2) second feet sale contained own) during Well acres of plaintiff then plaintiffs for said contract sufficient to Buyers shall paid in [*] to the well change the Certificate contiguous out allocated and elec- approval five together mother, already parties estate, Buyer [*] point there They land sec- full. pe- in ond. yields A “second foot of water” is a flow to the irrigate the any loss one would think the them to furnish one ther diversion. tained caused the ners of the document.” The defendants one second foot of water at the of water and since the contract site of foot of tiffs and protests and is to wait until there are per acre. This suit was agreements timony regarding the intentions of or ciation water and had not done so. testified that the land with one second foot of water was worth cedure in should county and hear all without the water it was worth fore, he fault The The trial court If the $12,000. land; rather, *4 agreed hearing court lies one plaintiffs is be plaintiffs produced well, water would be more in looked court not a difference for the reason that one in assessed the office of the State hearing $40,000 cubic foot land value of granted judgment between the the fact that the then their land was not could commenced is furnish one second foot acres of land only still own two second feet would not allow it would be the value send instead of be of them at one within the “four cor- second $1,500 of water ambiguous. canceled. plaintiffs’ damages in could deputy other contests parties $1,000 per finding before in a witness who on the in Therefore, foot of water than per to the the value damage in not sustain every sec- out only Engineer acre, and held question. proposed ample any a required any protest. amount sitting. There- second which depre- plain- acre, pro- fur- sus- tes- but or of 86,400 day (60 in x seconds a There are changed diversion 43,560 24). An land contains application have 60 x acre of This would new well. day, Therefore, in one square one granted protest feet. had it not been for two cover second of water would by (also named foot of title filed another man deep (86,400divided As- acres of land one foot the Federal Land Bank Castagno) 43,560 feet). That by equals 1.98347 Engineer set the mat- sociation. The State days every deep attorney be one foot plaintiffs’ would hearing, ter for but the by 2). This (40 tract divided the entire more than of water ev-

would be one foot of wa-

ery weeks or over four inches three would seem be

ter week which paddy and rice

enough water for a rice grow County,

does not in Tooele Utah. to the value

There would be no diminution land reason of failure As

have second feet it. two of water before, any damage,

I said if was sus-

tained, would be the one second value of well, is

foot water at the there no val-

evidence the record as to what that

ue would be. point kept

A further in mind is if there in the title to any defect assigned

the water which to the defendants

well, complain it ill behooves

about it for to that the title of defendants through plaintiffs.

water came

I would and re- reverse the trial court

mand matter for a I would new trial.

also award costs to the defendants. BAMBROUGH,

Clark Plaintiff Appellant,

Ray BETHERS, Ray Trucking, dba Bethers Danny Shimizu, Defendants and Respondents.

No. 14320.

Supreme Court of Utah.

July 1, 1976.