148 P. 1103 | Utah | 1915
The plaintiffs were non-suited and appeal. The action is brought to recover damages to real property alleged to have been caused from waters overflowing a ditch or canal along a street in American Fork City. It is grounded on negligence, failing to keep the ditch or canal free from obstructions. The non-suit ivas granted on the theory that no legal duty was shown on the defendants or either of' them to maintain the ditch or to keep it in repair or free from obstructions.
American Fork creek has its source in the mountains about six miles from American Fork City. The creek courses southwesterly through the city and empties into Utah Lake. About
Counsel for defendants Pleasant Grove City and Lehi Irrigation Company argue that what was done by those defendants were “mere neighborly acts” and “acts of charity and benevolence,” and that such acts should not now be turned into acts ‘ ‘ of duty anc( liability. ’ ’ The witnesses seemingly did not so regard such acts, at least not all of them. The mayor of American Fork City did not so regard them. To the contrary, he testified that American Fork City always contended that the other defendants were in duty bound to maintain and take care of their portions of the ditch. The argument is but an inference of fact. As strong an opposing argument can be made that one does not ordinarily, at his own expense, year after year, maintain and repair and clean out a ditch of another on the theory of mere charity or benevolence, especially one municipality on a ditch of another municipality, but, rather on the theory that he has some interest in the ditch or has some duty imposed on him to do so. On the evidence, we think a just inference arises that each of the de
The judgment of the court below is therefore reversed, and the case remanded, with directions to reinstate it and to grant a new trial. Costs to the plaintiffs.