*1
clusion of Dwight F. Howard ROBERTS and Malmgren, Defendants and required. Abraham Appellants. parties said agreement The final No. 9081. * ** not payments “if Supreme Court Utah. *** then to the terms according July 26, 1961. property party is to retain first * * * party is first but the (securities) against recourse have no other years negotia- party.” After two
second finally signed,
tion, we think that when application calling for case one became ap- Boyce rule. parol evidence stages and at all Shaw
parently informed facts, and him as to where
did deceive here, by agreement commission buyer with some
$300, where amount, or 4 times have
would Boyce, conclude that
it seems unrealistic Gaddis, make two ISOmile round consciously indulge in actionable
trips and subject him might
negligence
damage suit. evidence Gaddis’ see no
We convincing nor clear and
negligence part of Abraham. fraud on
evidence McDONOUGH,
WADE, J., and CAL- C.
LISTER, CROCKETT, JJ., concur. *2 known The latter were
stockholders. rights. Class AA defendants, The two stockholders corporation, under received water below, rights. both of the above The action however, that water concerned for City, Burton, Lake McKay Salt during defendants was distributed n appellants. year rights. under Class AA their brought primarily The action for Taylor, & Christenson, Novak, Paulson purpose establishing plaintiffs respondent. City, 'Salt Lake defendants, joint contribution from the AA users their Class McDonough, justice. rights’ proportionate share of below the action Plaintiff commenced operation maintenance and costs rata pro their the defendants recover the canal. Plaintiff founded action operation expenses for the (cid:127)share of Chapter 9, 73, 1, Title Section Utah *3 parties the which a canal (cid:127)maintenance of Annotated, 1953, provides: which Code the was tried The case jointly. (cid:127)used persons more “When two or an adverse jury and (cid:127)court without a dam, associated in the use of appeal. .judgment the defendants lateral, canal, reservoir, ditch, flume and operates plaintiff corporation The conserving or or con- other means for Gunnison-Fayette Canal the ^maintains irrigation land or veying water for n River the Sevier water from diverts them purposes, other shall each of and one-half approximately one point aat reasonable liable to the other for the Axtel, community of the miles northwest operating maintaining, so conveys water diverted Utah, and same, controlling in and east to the northerly direction a general in ownership in the the share use River the Sevier paralleling the water which he entitled.” where the miles approximately proportionate share for the Bridge Defendants’ Reservoir. the Sevier terminates was, computed, were those year at was of all by conveyed the canal receiving persons water from the by the material, distributed herein all times the amount on the basis of of water under water to its stockholders plaintiff it related to total cost private received as it, rights each by and under owned rights charge This operating the canal. by separately some of individual owned per by water de- amounted to acre foot of “Motion W. Gribble Sec- $1 J. by Elijah onded That the livered. board James. accept proposition Howard Rob- de- by way an affirmative Defendants ljío erts to let him run his f. wa- s. ap- fense claimed that the was statute ter same, Fay- less of the in the 10% plicable by agreement alleged reason of an ette permanently Canal sum of plaintiff into with had entered per year. go- $35.00 That the 10% defendant, Roberts, Febru- Howard Bridge Sevier Reservoir for ary 28, 1931, permit- whereby Roberts was Fayette credit of the Canal Com- through carry ted to his AA water Class ag pany agreed by Howard Roberts year, con- per the canal for the sum of $35 part consideration for Com- the Canal per upon ditioned a ten granting Roberts pany getting storage rights in said cent in favor of right interest in his Fayette reservoir for Canal 3% Bridge Reservoir the owners of the Sevier Company water instead 10%.” acquire storage in order that could rights three therein a reduction of These at minutes were written at direc- per Defendant tion cent of its own water. of the defendant then Roberts who was Malmgren secretary managing agent plain- was a defendant suit from tiff corporation; position because he was successor and which he- persons original throughout held period various to a to 1956. by alleged agree- The rely Roberts’ covered notes which the defendants estoppel alleged by were personally. ment. Defendants further written Roberts Al- though affirmative defense in that both entry as an the con- the minute and the notes recognized support and acted had been tend to alleged tract the existence of the by parties years. agreement, for over 20 presently appear, the- altered', signs *4 was also rewritten in different a color of' Decree, by the Cox as *5 problem
them for the entire A is that liable for contribution more troublesome only presented length they by used the of assignment the canal defendants’ when some With regard six canal. error with for expenses miles of the 15-mile to the they this agree. They Section contention we cannot which were held claim liable. 73-1-9, upon U.C.A.1953, joint the basis the users of canal defines proportionately which determined not have been contribution is to held liable “ * * * being expenses the share for the total proportion to cor poration, rather, in the to but ownership liability or use their which only expenses he should extend Nothing is entitled.” to those foregoing proportionate directly operation section relate the the limits the to only exeep share to portion They particular the canal used canal itself. take convey (cid:127)to tion being the to the water. The bases held liable for share of statute purely corporate upon or ozvn- contribution the me administrative plaintiff, costs costs or for those «ership upon pro- the water and not upon projection are based legisla- of the canal If the used. improvements. canal future ture intended that contribu- statute tion upon proportionate should be based hand, Plaintiff on the takes the expenses share of for position that expenditures all of the aof canal conveying used the water of company were related joint user, apparent such intent is operation and canal maintenance Furthermore, from the language used. defendants, therefore, and that were properly (cid:127)apportionment proportionally held based liable for them. Plaintiff claims that under Section actually place of a canal used an 73-1-9, supra, which states re- that with impossible responsible burden those “* * spect joint users aof each making apportionment. an such This shall be liable the other for the reason- n conclusion is also supported by the not expenses able maintaining, operating practice (cid:127)uncommon among water users of * * controlling the same that the .a canal to sell or lease their water to other liability clearly basis of the defendants’ along canal. users The record shows expenses extends to all cleaning, as the n the defendant Roberts, as an example, repair and maintenance years just practice. followed had such a devices, measuring installation of require apportionment under To such cir- plaintiff’s well as the services of the unduly burdensome, cumstances would officers and watermaster in administering impractical and the canal. unworkable. rule, Under this to hold the occasions it was error
This
several
court has on
proportionally
defendants
liable for
problem
general
faced with the
total
defray
plaintiff corporation,
making
assessment
since
irrigation
expenditures
no
a number of the
had
cost
of an
distributing
waters
sys
relation to
the defend-
prior cases
received
Although
benefits
tem.2
*6
expense
following
ants whatsoever.
which were
dealt
with assessments
items
expenses
had
relation to
no such reasonable
levied
defray
salary
to
and
the distribution
the defendants’ water
of
73-
Section
of
under
commissioners
justify
an
as would
their
5-1, U.C.A.1953,
with
inclusion:
than
rather
right of con
assessment
based
(1) Legal
protest
filing
fees in
a
for and
73-1-9,
believe
tribution
we
under Section
plaintiff corporation against
of
behalf
those
adopted in
we
rule which
application by
a
man
the name
well
as
for an
cases
out the
basis
sets
of Hansen.
we
sessment
situation
Utah Power
well. In
here
are
concerned
(2)
for
at the
interest on a note
$203.73
Co.,
Irrigation
Light
Richmond
&
Co. v.
Valley
Gunnison
Bank.
824,
stated
352,
818,
we
115 Utah
204 P.2d
(3)
Engi-
paid
Utah State
$233.59
rule thus:
Co.,
by Gunnison-Fayette
neer
based
Canal
solely on the amount
water delivered
of
exact-
“Restating that mathematical
to
Canal Co.
valid as-
necessary
is not
ness
is—there
sessment,
the rule
plaintiff
Inasmuch as the
has the
relationship
be
reasonable
should
showing
all
burden
the cost
proportion
between
sought
are
contribution
reason
borne
individually
be
distribution
ably
distributing
related to the cost of
re-
be
services
and the benefits
water, any expenses
defendants’
which do
assessment
ceived,
think an
we
affirmatively appear to be so related
not
Com-
Paradise
against
be levied
be excluded. The above
are
must
items
that used
same basis
pany
on
clearly unrelated to the cost of dis
either
other
imposed on
water or do
levy
tributing the defendants’
not
determine
so
appear to be
related.
affirmatively
ours.)
(Emphasis
users.”
283,
605;
Co.,
Fayette
Co.,
Utah
61 P.2d
90
Irr.
Canal
Ford
Gunnison
Bacon v.
2.
1004;
Light
&
Co. v. Richmond
Power
278,
Utah
Bacon v. Plain
P.
284
Utah
75
City
352,
Co.,
427;
one’s to CALLISTER, JJ., HENRIOD and B proportion expense must share that of the concur. maintaining of the canal over entire its length.
50-mile It is obvious that an such CROCKETT, interpretation (concurring statute be ex- could Justice —dis- part). senting in tremely unfair and unrealistic may be prohibitive development purpose and use of encouraging develop- of the ment, legislature transportation I water. do believe the and use water. any a incongruity. Such intended support interpretation Further of that is when there result should be avoided and considering closely found in related stat- uncertainty how a statute should as to ute: the next section but one before the resolve interpreted, it to discussion, 73-1-7, statute under Sec. acknowledged serving doubt in favor of provision contains authorizing this purpose of our water law: underlying very joint use the canal, states that econom- providing the most feasible and exist, where canals or ditches may another develop ical to our means and conserve way convey have the to water resources. equitable therein an “paying proportion of the maintenance the canal or ditch language It no does violence to the ” * * * jointly used. added) (emphasis U.C.A.1953, 73-1-9, Sec. referred to in the It seems to the writer that this section opinion, jointly persons main that when use * * * makes it even clearer that charge can- be liable canal: “each shall not properly proportion be based the other the reasonable ** * of water transported owned and in par- same, maintaining, segment ticular It is canal. much proportion share in the or own- use * logical * more and realistic to conclude that say ership the water charge, which the sections of the stat- sharing be in ute say above referred to must be “reason- length water in entire the total “equitable,” able” and should be arrived at is, example above, given canal. That by giving some perti- consideration to all of the water in the if B has one-half only nent circumstances: not mile A has all one transported any given of water at point, miles, plus for 49 one-half for but person’s to the distance each share mile, expense sharing one transported, perhaps must be to other segment. one mile not be 50-50 based factors which the water may added proportional But it should greater expense in cause the maintenance along in the canal each owns entire such as the nature of the *8 responsible Then length. be passes, it terrain over which original 49j/£miles for A and mile in the ratio t/2 size the canal and the amount interpreted is the statute so B. If and required. enlargement And taking into fair, provides equit- basis for a applied, it matters, all consideration unless practical charge result is such consonant made that it clearly able and with P.2d 109 court “inequitable” this “unreasonable” or it. would not disturb Utah, Respondent, STATE of Plaintiff and v. opinion this case can my It HORNE, Albert Defendant Lawrence ground that should be decided Appellant. be cannot charge defendant No. 9380. “inequitable” or “unreason- classified as judgment that reason the able.” And for Supreme Court Utah. except items should be affirmed Aug. 14, 1961. I opinion. But do indicated in the main law announce the not think it expense in the canal sharing solely proportion of basis of regardless used distance transported.
it is
WADE, (concurring). Chief Justice opinion prevailing with
I concur it McDONOUGH think
Mr. Justice presented by problems case.
meets agree
However, also I Mr. Justice that under the in- statutes
CROCKETT charge must be “reason- here
volved “equitable” and under some
able”
situations, would not either reasonable require person equitable to who used
or large irrigation of a small pay proportionate share of
system irrigation sys- operation of entire his which entered
tem all bears
system However, system. I do
used inequitable any unreasonable as-
find here.
sessment notes having show Defendants admitted that no formal con- insertions, various erasures and covering agreement tract had been erased, entry appears minute to have been parties, but claimed that executed and rewritten handwriting. different sufficiently the contract evidenced And entry the altered of the minute adjudication on the general Sevier
Notes
River known
notes
ink
portion..
from that of
unaltered
by defendant Roberts while he was
taken
secretary,
plaintiff’s
reply
a
answer,,
minute
In
to the defendants’
plaintiff’s corporate
in
entry
minute
denied that
claimed agreement
book.
entry
of the minute
portion
upon
alleged
portion,
been made and
that
had
rely
question
defendants
as
entry
which
reads
the minute
in
follows:
had been.
157
AA
claimed,
Class
of his
changed
Roberts to Roberts had
the direction
at
10%
year. Mellor
falsely
per
alleged agreement
that
and $35
show
also
decided
agreement
between
Roberts had been
testified that
plaintiff and
year
upon
meeting
was
from
temporary
directors
entered into at board of
year.
February 28,
support
held on
In
1931.
allegation plaintiff, during the
this
course
evidence,
this
On the
basis
trial,
Percy
called several witnesses.
J.
agreement
trial court
found that
Goddard,
expert,
testified
handwriting
into and
alleged had not
entered
as
been
entry
that the
herein-
portion
minute
of the
upon
agreed
that
arrangement
instead the
before
ink
erased with
set out had been
year.
year
had been
temporary from
handwriting
eradicator
in a
and rewritten
determination,
Such a
when based
only
different
the unalter-
that
from
conflicting
as that
evidence such
ed
entry, but differ-
minute
upset
appears
record,
in
will not
handwriting
ent
in
manifestly
the court
appears
unless
minute
further
book as
Goddard
well.
misapplied
made find
proven facts or
has
portion of the
testified that
the altered
clearly against
weight of evidence.
ings
handwriting
minute entry was in the same
Parker,
263,
P.2d
Cole v.
2d
300
623.
5 Utah
as that
appeared
on a letter marked
regard to this
find no such error with
We
This same
Exhibit No. 7 at the trial.
finding.
subsequent
letter
was later identified
witness
having
written
Howard
In the
an enforceable
absence of
Roberts’
wife,
he was
second
whom
joint
of a
agreement between
users
married
until 1941. Plaintiff
from 1936
rights
obligations
specifying the
Elgin
also
Mellor who
called as a witness
parties
payment
director,
awas
present
and was
at
expenses,
(section
the statute
the canal’s
February
board
meeting
directors
73-1-9, U.C.A.1953)
controlling.1
28,
agree-
1931. Mellor
testified
ment
meeting
arrived at
was to
next contend that
Defendants
effect
convey
Roberts
his
could
any event
liable
contribution
through
the canal
he
condition that
of the canal which
pay to the
rather
than
plaintiff,
convey
They
used to
their water.
owners
Bridge
in holding
Sevier
Reservoir
the court
contend
erred
405,
Co.,
Thornley,
1.
181
West
v.
Canal
111 Utah
P.
Union Canal Co.
Creek
64
Valley
217;
199; Perry Irrigation
77,
Utah
Canal
Peterson v. Sevier
P.
2d
45,
Co.,
Company
Thomas,
193,