103 P. 967 | Utah | 1909
The respondent, after stating its corporate capacity and that of appellant, in substance, alleged that respondent and appellant for more than thirty years had been associated as “tenants in common in the use of a dam and canal or ditch, said dam being commonly known as the ‘City Dam,’ and situate in what is commonly known as ‘Chalk Creek,’ about one mile east of Filmore City, in Millard County, Utah, and said canal or ditch leading from said Chalk Creek at a point about six feet east of said dam down to and through said Fillmore City;” that the waters of said creek are diverted by means of said dam to be used, and are used, by the respondent and appellant; that the interest of respondent in said dam, ditch, and water is two-thirds, and that of appellant is one-third; that appellant used its proportion of the water and said canal to generate power to operate a
The principal error complained of is the following: At the trial respondent was permitted to prove that in the years
The claim of appellant seems to be conceded. At least, we do not find that it is controverted by respondent. Respondent, however, insists that it does not appear that the new dam and ditch are not located on goverment ground, and, if this were so, the law would afford appellant the rights it now claims it does not possess. Be that as it may, it is clear that the action is based on section 1288x30, Comp. Laws 1907, as this section was amended by Laws 1903, p. 103, c. 100, sec. 59 and Laws 1905, p. 162, c. 108, see, 59. Prior to these amendments the section did not apply to dams, as appears from section 1280, Rev. St. 1898. It also appears from both the complaint and answer that the
At tbe trial, tbe court, over appellant’s objections, permitted respondent to prove that it bad constructed a dam and ditch at a point other than where the originals were constructed and as described in tbe complaint. More than tbis, tbe court also permitted respondent, over appellant’s objection, to adduce evidence of an express agreement by appellant to contribute to tbe expense of rebuilding tbe dam and ditch at tbe new point in tbe absence of any allegation in tbe complaint upon which such evidence could be based. If it be conceded, therefore, that an implied agreement to contribute, either at common law or under tbe statute is not limited to tbe reparation or rebuilding of tbe original dam and ditch at tbe place where originally constructed, it is nevertheless true that in tbis ease tbe complaint states a cause of action based upon an implied agreement, while tbe verdict and judgment in all probability are based upon an express agreement to contribute to the expense of erecting a new dam and constructing a new ditch. If tbe judgment is not based upon an express agreement, it is not based upon anything. We are not prepared to subscribe to tbe .doctrine that either at common law or under
Thom what has been said the other errors complained of cannot arise in the same way at another trial if there be one. The judgment is reversed and the cause remanded, with directions to the district court to grant a new trial, and to permit the parties to amend their pleadings if they are so advised, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs.