Fenton v. Salt lake County

3 Utah 423 | Utah | 1884

Emerson, J.:

This action was brought against the county of Salt Lake and others to recover damages for injuries to plaintiff’s land, caused by constructing canals near said land, and diverting the waters of a natural stream therefrom, and to which was added a prayer for equitable relief.

The case was dismissed as to the defendants other than Salt Lake county. The county demurred to the complaint, which was overruled, and the issues raised by its answer were tried by a referee, upon whose report of findings of fact and conclusions of law a judgment was entered in favor of the plaintiff and against the defendant county for two thousand dollars damages and costs of suit, together with a decree that the defendant county restore to the plaintiff a certain portion of the natural stream flowing through his said land. From this judgment the county appeals to this court.

Various exceptions were taken to the findings and report of the referee, none of which will be noticed here, as the case will be disposed of upon the point raised by the demurrer. The demurrer raises the point that the complaint does not state facts sufficient to constitute a cause of action against the defendant county, inasmuch as there is no averment that the claim was presented to and disallowed by the county court in accordance with the provisions of section 6 of an act of the territorial legislature approved February 18, 1878.

The section referred to provides that “no action shall be commenced or maintained against any county, until the person or party having a claim, demand, or right of action shall present the same to the county court thereof, with proof of the correctness of such claim, demand, or right; and until the same shall have been disallowed by said court.” The next section provides that if a claim or demand is not audited in four months after presentation it shall be deemed to be disallowed: Sess. Laws, 1878, p. 4.

This provision is founded in wisdom, and is in furtherance of a judicious public policy to prevent needless litigation, and save unnecessary expense and costs by affording an opportunity amicably to adjust all claims of every nature against a county before suit brought. The right to commence or maintain any action against a county is, by the statute, made to depend upon the fact that the claim, demand, or right of action has first been presented to the county court, and has been disallowed either expressly or by non-action.

This fact must be stated in the complaint. It is a substantial allegation, upon which the plaintiff’s right of recovery depends, and without it the complaint fails to state a cause of action against a county.

The judgment of the court below is reversed and the cause remanded, with instruction to that court to sustain the demurrer.

Hunter, C. J., and Twiss, J., concurred.