*1 amount of cattle which to sale conveniently carry at this time. land will EPTING, II, Amy Lynn Thomas L. Epting, by guardian, their Plain- that the water and hold We believe Appellants, tiffs tracts of land con appurtenant to the two of water which was
veyed is amount Respondent. Utah, Defendant STATE and at the beneficially thereon before used No. the sale. time of Supreme of Utah. Court remanded to the trial court case is Feb. to ascertain the amount of directions with parcels upon the two last used water sale and to immediately prior to the
land respective to the amounts
award those present so far as the
purchasers.2 In use that amount of the
judgment awards parties, hereby it is af- water to the more or less than
firmed. If it awards amount, it is reversed. costs are awarded.
No
HENRIOD, J., and C. CROCKETT
TUCKETT, JJ., concur.
MAUGHAN, dissenting: Justice, reasons, following I dissent: “a my conveyance stock is, terms, express
watering right” an rights
reservation other there of whatever be; compliance
may is thus in
the statute. appears me that the trial court took
It acreage
into consideration the total appurtenant,
which the includ- water
ing retained the 11.4 acres of land
plaintiff. appears further on this It
base, proper allocation of the available
water was The extension of the made. plaintiffs’ prop-
water line to that
erty where he later built his house is also important consideration, particularly
view of what I believe to be a limitation appears
the deed. It this was also
considered I the trial court. would af-
firm. required. opened taken. evidence additional
2. A new trial is If its motion the court evidence, needs additional case can
243 agree just ties is crucial the issue stated to is 63-30-10, Section U.C.A.19S3: immunity Injury of Waiver caused — negligent by act employee or omission of —Exceptions.—Immunity of from suit waived, Howard, governmental Howard, all of Lewis entities is for B. Jackson Petersen, injury Provo, plaintiffs ap- & proximately negligent for caused pellants. act or omission employee of commit- scope employment within the ted of Gen., Atty. Romney, Vernon Earl F. B. except if the injury: Dorius, Gen., Atty. City, Lake Asst. Salt (1) per- arises out the exercise or respondent. for defendant and of formance or the failure to exercise or tiffs’ statement of facts.1 motion to dismiss. Plaintiffs ing ber ning (detail it Epting Mitchell, er. The trial court ant’s convicted. morning a “work release” volved Mitchell, for which Orem, and driven to his work at In Plaintiffs, CROCKETT, Justice: 10, brought become involved in been motion to dismiss we October negligent have Hart he was granted purpose the killing in not material back the case escaped minor children of 1974, the state then sue the State in program. released allowing of crime he was picked privilege granted remanded considering killing prison. prison, here) later in accept from Uvalco, Inc., Each work up Michael Michael appeal, alleging of their moth- defendant’s after work became in- to On Octo- also for trial. being Cynthia defend- Epting escape plain- Hart, seek- Hart later eve- that day in plaintiffs’ also that it arises out of meaning mind recital of a quoted. posing just stated. ercise many and ever court erred in both perform er or not the discretion is of finement, or protection of the state necessity of (10) arises out plaintiffs’ any person city jail * approaching of a The trial contentions that of the underscored Plaintiffs a discretionary complaint conclusively * in the state “discretionary “the claim arises out legislature increasing in any state other immunity court’s * provable it grounds argue of analysis of the is place prison,” * [*] the “incarceration ruling the incarceration well function, abused, number of function”; has as prison, county rendering of phrases facts under * essential to included of the ex recognized within the the trial or have wheth- show” ruling * [*] gov- con- just op- in plaintiffs contend that the State was prefatory section ernmental services. In negligent in failing to use due care U.C.A.19S3, 63-30-3, it has act, keeping Hart incarcerated or vided that: under surveillance and that this failure provided Except may otherwise proximately caused the death their act, governmental this entities shall all mother. any injury be immune suit activities may A result from the threshold which issue is the state’s entity is immunity wherein said en- said entities from such a cause of action discharge aof in the exercise and gaged waived Immunity the Utah Government governmental function. Act.2 The par- both the act which Chapter Olsen, 2. Title Malmstrom v. 400 16 Utah 2d Butters, (1965) ; P.2d 209 Ewan v. subsection 63-30-10 (1) court,3 and other of this The decisions sovereign immu- quoted above has retained recognition states,4 have indicated nity. general is thus a principle that where there immunity,
preservation
governmental
supports the
adequately
foregoing
clearly
to be
be found
exception
ruling
But the
ruling
the trial court.
*3
provisions of the act.
stated within the
(10)
subsection
of Sec-
was also based on
above,
quoted
leaves
tion 63-30-10
which
problem: whether
the
regard
In
protection
sovereign immunity for
re
the
of
prisoner in
“work
a
placing of a
the
injuries
arise out of incarceration
subsection
within
program
lease”
comes
prison.
this
state
therefore make
.
the
We
“the exercise
quoted as
(1) above
Mi-
function,
status of
discretionary
further comment: As to the
...
[of]
prison, there
state
following observa-
chael Hart vis-a-vis the
,”.
make the
we
alternatives,
just
either:
faced seem to be
two
prison
are
authorities
tions: The
of
totally escaped the control
always existed
He had
(a)
has
dilemma which
with the
acting
his
prison
extent
thus
own
penal
as to what
the
and was
institutions:
him;
prison
responsible
fur-
for
for
so the
was
furnishing an education
they are
the
the control of
crime,
(b)
rehabilitation of
he was still under
for the
ther
citizenship.
that his conduct
prison
think
authorities
so
prisoners
We
into useful
of
incarceration of
the use
“arise out of the
much doubt that
would
there is not
.”
prison .
.
ef-
state
programs
is a worthwhile
work release
[the]
prison is im-
the
objective. But
in which latter instance
fort toward the latter
prison
the
au-
from suit under the statute.
mune
is within the discretion
the ex-
In addition to
thorities to decide.
agreement with the trial
Because of our
and
judgment as to the value
of this
ercise
funda-
court,
explained, on the
as above
program generally,
practicability of such a
any further
proposition upon which
mental
problems
advisability as
there are
about its
plain-
by the
state
proceeding
the
prisoner.
In order to
individual
to each
than
depend,
do no more
we
tiffs
weigh
positive
possible
the
values of
bene-
problems which
critical
mention other
program against
for
in such a
the
fit
him
plain-
in order for the
would
confronted
negative
as the
factors such
likelihood
recover,
there
tiffs to
viz: whether
escaping
engaging in
and
more antiso-
part of the
any negligence on the
conduct,
the
cial
it is essential to consider
killing
officials;
aspects
personality: his in-
various
of his
something which
telligence, aptitudes
qualities
Epting
of char-
Mitchell
acter such
honesty, integrity
and indus-
and therefore
foreseen
reasonably be
could
try; and
whether he has demonstrated
proximate result
found to be
could be
sincere desire
so
to rehabilitate himself
ground
the additional
negligence; and
such
that there is
probability
a reasonable
court,
plaintiffs
trial
by the
cited
he will
Accordingly,
agree
succeed.
we
re-
undertaking as
file an
failed to
with the view
that the
of the trial court
63-30-19,
quired
handling
Michael Hart was
ours.)
(All emphasis herein
something which “arises
of the exer-
out
awarded.
cise
costs
discretionary
of a
Affirmed. No
function”5
537;
652,
Riley,
ty
P.2d
Commission,
128
See Holt v.
v.
3.
20 Cal.2d
Road
County Commissioners
Turner,
Board
4,
v.
1286;
v.
Williams
21
511 P.2d
Sheffield
548,
County,
P.2d 795.
Kan.
389
314,
192
Rice
Utah 2d
mination is to the “arises
With reference out any person . ex
incarceration .” . Immunity
ception in our Governmental
Act,2 reading I that a submit careful
statute, policy and a consideration BRADY, Plaintiff and con Lowell L. enacting reasons behind such statute Appellant, is clusively purpose show that the statute’s v. prevent persons dis incarcerated George Smith, John E. FAUSETT and L. rupting gov orderly administration Respondents. Defendants and ernmental institutions where confine 14131. No. ment, offense, is proper; crime or ' y rendering nugatory frivolous lawsuits Supreme Court of Utah. persons, supervisory incarcerated Feb. personnel.3 do nothing It has whatever to remotely con party third not even nected with the incarceration. believe,
This strengthened I out phrase “arising
our Constitution.4 The enacted, incarceration” was XVI, Legislature 63-39-10(10), Section 3: 4.Article prohibit: outside The labor of convicts shall grounds, except un- Turner, works Utah Sheffield the direct control of the State. der