*1 Dougherty, Ron DOUGHERTY Judith Respondents, wife, Plaintiffs

CALIFORNIA-PACIFIC UTILITIES COM- corporation, PANY, a Defend- Appellant. ant and

No. 13854.

Supreme Court of Utah.

Feb.

881 which allows 16 maximum of feet to into the second flow The canal. arrangement, second is another control which is said to be “a dis- considerable tance” above the property. Its purpose “permit is stated to be to escape from canal” in the the event of an jam suppose any ice other difficul- (or which has ty), sometimes been used as oc- required. casion third The is located in forebay impounds the which just power plant. the There spillway side; along is a its east (downhill) planks, are is, by five or six two Jackson, Morris, Joseph Durham E. sixes, long, about 14 feet which can be re- City, Cline, Mayer, of Cedar moved order to release the Jackson appellant. for defendant forebay, to run back down into the riv- er. The fourth is the outlet of the end of Fenton, City, for Cedar Patrick H. penstock, opened which can be to ten plaintiffs respondents.

inches in diameter. CROCKETT, Justice: plaintiffs In March of moved completed partially into their home which Dougherty Ronald sued Judith just they lying had built on a tract of land Company, to re- California-Pacific Utilities 2,000 of feet eastward the canal about flooding for of damages cover for plant. upstream from the defendant’s adjuncts their home thereto culinary Nearby they had drilled a well for overflow of defendant’s canal. Trial uncapped at the time. water which was findings judg- the court resulted 8, 1971, unusually August severe On plaintiffs in ment in favor of the occurred. It was rain and hailstorm appeals, amount of $896.27. intensity fell in about such that 1.72 inches contending: not does evidence area, in- hours and drenched whole two support finding negligent, that it was west, from cluding the hillside to proximately nor that it caused the into coursed down and whence water damage; plaintiffs tiffs’ and also full the wa- so The canal was canal. negligent in causing were themselves such and down bank its eastern ter overflowed damage. causing vari- plaintiffs’ property onto the Defendant, California-Pacific Utilities their ruining of damages, including the ous Company (formerly Southern Power Utah re- pump, it cost which $663.07 well and hydroelectric plant has Company) its No. damages aggregating other place, and alongside the River near Santa Clara The de- judgment $896.27. total Veyo, Washington in Pine Valley, County. complain as to does not fendant The canal diverts water from river damages. amount upstream about three and a half miles from defendant’s moves down argument first Defendant’s forebay (a reservoir); small thence at be properly plaintiffs’ damage cannot through penstock down to the turbines part its negligence on tributable supply power generating for which unexpected of such storm was electricity. regarded be severity should that it unusual respon no it had of God” “an act There are four means of control of the as and for whose against safeguard sibility volume water in the The first canal. We liable. held not be river, damage it could point at the diversion 73-1-8, disagreement argument their own Section have use. U.C.A. 1953,provides defendant that the occurrence that: they should be in fact “an act of God” owner of ditch ... occur liable therefor.1 Whether an held other watercourse shall maintain the as “an act rence should so classified repair same in so as to waste of *3 depends upon storm was whether the God” damage water or property of others. it magnitude severity that was such guarded reasonably be foreseen and haveWe held that this is but an enactment traditional, reasonable against of the universal standard care un of due A circumstances.2 prudent man under the 4; der the circumstances but that in storm preliminary question is whether this taking cludes cognizance degree sides Both should be so classified. proportion care in increases hazards their and made presented some evidence anticipated, that due dangers so to the in They respective on this issue. contentions water, herent in manage the control of of considerable agree that cloudbursts quantity flowing ment such a area; occasionally fall in that magnitude should be in hands of someone of skill records presented and the experience.5 indicating that other dates on certain Upon learning storm, defendant’s comparable there had been past foreman, Hunt, Ivan rushed to the area. it is On issue of rainfall. amounts He observed that hail had accumlated upon conflicting evi say that sufficient about three deep inches and that the con defend rejected the the trial court dence tinuing torrential rain was melting the hail ant’s contention. great quantities of water were cours It pertinent is further to-observe ing downhill upper side (west) that if even the storm had been of such canal; into the that the canal was full to as to unexpected nature be and unforesee overflowing its eastern bank down toward able and' therefore classifiable “an act as property. He stated that he God,” necessarily that would not insu mostly interested seeing late the liability. Not canal through. bank had not broken When withstanding event, neg such an is if one questioned why as to he had not tried to ligent and negligence concurs act use means way proxi of God in above to reduce such a mentioned it is a another, damage mate cause of he is the water in the canal he stated that he Consequent liable.3 above, pro to the thought that damage had been done question ceed negli and that it do good. little But from gence. his own testimony other evidence in imposes Our record other reasonable statute inferences affirmative duty upon of care those who divert waters could drawn. Irrigation District, 517, 536, Waters, Charvoz v. Bonneville 3. See 169

1. Annot. A.L.R. 480, (1951). Liability Overflow, 120 Utah 235 P.2d 780 and cases cited there- in. strange, 2. It Ibid. seems somewhat but is Co. Bench West Union Canal v. Provo true, Irrigation Co., 128, nevertheless that when an occurrence Canal & 116 208 Utah totally unexpected (1949) is so ; it violent 1119 Jensen v. P.2d Davis Weber contrary Co., 10, discordant reason Canal Counties 44 Utah 137 P. 635 upon (1913). usual course of it nature is blamed Deity as an “Act of God.” Bennion, 5. Erickson v. 28 Utah 2d (1972). P.2d 139 Now, Q. Upon being questioned provision Hunt about Mr. was there some planks spillway along in the east there where boards could be removed to forebay stop flooding testified: side of he ? Now, planks in right. are there some A. That’s

Q. you men- this area of overflow Q. procedure And this the normal tioned? in a cloudburst ? say is That I’d A. Yes sir. overflow twice, A. It’s been done be- once I wide, over to 14 feet it is cement about lieve. feet, that’s a about, I five guess, Q. you actually That of ? know feet, good guess, the five there’s Right. planks be removed. can Q. words, In you say- other are Now, planks were removed Q. *4 is, you believe that if the overflow place, affect the flow at would that that pulled down below were out or lowered up in the hydro canal No. of in way possibly in some that that canal place Dougherty ? of area the greater could accommodate a stream of faster, go yes. It would A. water ? ^[******] A. I know it can. pulled the you Had . .

Q. Q. Now, proce- is the normal what increased the out, it have boards would dure a re- when flood occurs —let me [canal], the ditch down flow occurs, phrase a what is it. When flood it? procedure wouldn’t point the at normal the the to no harm comes? ditch see that Yes sir. A. Well, particular case the in A. penstock all opened the you Q. Had jerked have out the boards could been the increased way, would have it Dougherty’s below house overflow ditch, down the flow three times. increased [Em- flow wouldn’t it ? phasis added.] Yes sir. A. review, Under our rules when that anything Q. And wouldn’t dispute, differ is in and when evidence that down of water therefrom, flow creased the may be ent inferences drawn being were people that help the ditch to prerogative is of the trial court ? flooded will believe choose evidence he that can to inferences also deduce to. It tend A. would therefrom. fairly reasonably drawn here, it our honoring prerogative is testimony of Mr. In that is also the There Jacob is basis operator, opinion which there a sufficient that Jones, planks support if the had been his conclusions tends to show degree of care speeded have failed to exercise out that would taken required ordinary prudence prevented at have which the canal and flow of property and protection plaintiffs’ flooding its eastern of the its over least reduced of the proximate cause property. He tes- this was the bank and onto further, the evidence damage; tified : plain compel finding that not a does Well, right overflow negligence which guilty tiffs were see, you those are the (indicating), damage. contributed cause lifted have been boards should plaintiffs (respond- flooding above Costs you Affirmed. wanted ents). here (indicating). plaintiff, court,

TUCKETT, main J., concurs. the trial and the opinion judgment against the give herein HENRIOD, (concurring Chief defendant for some sort of “backhanded Justice result): opportunity” last avoid clear chance harm which defendant did not cause. result, I concur in the trial since facts, which, judge if be- chose canvass that if had It is claimed the defendant lieved, case, very a close would sustain opened penstock valve and pulled him, may to a albeit one have resort bit planks forebay (reservoir), out of its pulling here in imagination dubious its load augmented canal could have carried prudent judicial reasonable rabbit out of past plaintiffs’-house. safely of water top hat, way may whichever case have no place In the first the defendant owed opinion been decided. The main has enun- duty anything to do accurately, ciated basic principles so that damage. is claimed have avoided applying facts, disputed to. them the had place In -the second the defendant interpreting it, but repeating the law and opportunity things now asserted to do applying it thereto. to be cause the harm. result, The net what with a district he plaintiff himself testified that judge, litigants attorneys all over mile about half a neighbor’s was at a house facilities, place, plus employment away began flood when the justices personnel court, of this makes home,- “My out got time he wife was *5 abundantly this clear to author that the com- block trying shovel off real, only case, losers in substantial what me she told out of the canal and volving $896.27, already overbur- —are happening happened had what was dened-taxpayers. that there was I believe magnitude much said about ELLETT, (dissenting): Justice except storm the excessive amount our get had do flooding and I cannot any negligence find part on the place protected.” of the proximate defendant which was a Hunt, employee cause of Mr. plaintiff. defendant, damage The was by defendant called as along maintains a canal a witness the con- tour of testified that he went from hills and above the his home Santa power plant generator Clara and took River from water is diverted off line and used because generate flooding. electric then current. He up went This canal capacity has a canal described the (cu- 16 c. f. s. condi- per tion bic feet thus: second) and will not overflow when that amount of water flows in it. got top When I on of the hill hail, Branham imag- house there was I . day question On the ap- there was ine, deep three inches on the north side proximately 9 diverted from c. f. s. the riv- of the bushes and it had hailed and, er into the canal had it not been for a rained all on over the south side unprecedented proportions, cloudburst of there was your around knees that amount of would have reached everywhere. practically power the defendant’s without problems being raised. just Branham house was tiffs’ home.

The trouble arises from the fact that sheets of water the hills ran It thus plaintiffs’ place from into and is clear across the was anybody canal and onto the flooded oppor- before had an property. water, tunity anything guilty of no do negligence hills, However, sheets, whatsoever. the which flowed in escaping- and onto out canal plaintiffs’ property. stated, I I dissent. the reasons For and remand judgment reverse the judgment enter

the case with directions to the defendant for cause action.

MAUGHAN, in the J., concurs views dissenting opinion of Mr.

expressed Ellett.

Justice CORPORATION, a Utah

UINTA PIPELINE Respondent, Corporation, Plaintiff and

v. COMPANY, corpora- SUPERIOR

WHITE tion, Appellants. al., et Defendants and

No. 13950.

Supreme Court Utah. March *6 Hanson, Hanson, Rex & Wadsworth J.

Russon, defendants and City, Lake for Salt appellants. Christensen, Worsley, Snow

Harold G. Christensen, City, Salt Lake for respondent. tiff and ELLETT, Justice: Company Ken White R. from a verdict appeals this court plaintiff. The judgment in favor of the prejudgment plaintiff appeals cross court the trial terest on the award which denied. engineer- professional is a appellant retained firm and engine of an provide installation for the in connec- compressor single-stage

driven compressor was gas tion well. The