200 P. 510 | Utah | 1921
This is an action to recover damages for injury to certain fish ponds and destruction of fish contained therein situated in Salt Lake County, Utah. The defendant demurred to the complaint. The trial court sustained the «demurrer. Plaintiff elected to stand on his complaint, and an order was made dismissing the action. Judgment was entered accordingly, from which judgment plaintiff appeals.
Three causes of action are alleged: (1) For taking and damaging property for a public use; (2) for a nuisance by which plaintiff’s property was injured and destroyed; (3) for negligent acts and omissions on the part of defendant in handling and controlling certain waters for public use, and in its proprietary capacity for hire.
The first cause of action, as far as material to the issues involved, alleges in substance the corporate capacity of defendant; that during the months of July and August, 1916, and at all times alleged in the complaint, plaintiff was and is now lawfully possessed and the rightful occupant of certain lands consisting of about 5 acres, minutely described, upon which he had constructed at great expense certain trout ponds, consisting of 10 in number, of various sizes and dimensions ranging in depth from 4 to 8 feet, connected by ditches and conduits so as to cause a flow of water through said ponds. The ponds and their relations to each other, together with the manner of their construction, are described with great particularity. It is then alleged that during all of said times plaintiff was and had been engaged in the breeding and raising of trout for market, and that said ponds were especially prepared for that purpose; that plaintiff’s dependence for water to supply said ponds was the water of certain natural springs, conveyed by ditches or conduits into said ponds;
Plaintiff further alleges that at all the times mentioned said defendant operated and controlled a water system, by which it supplied with water the county infirmary, maintained by said defendant, primarily and mainly for the care of its dependent poor, and secondarily for the furnishing of a supply to other persons for compensation; that said defendant also, by and through its said water system, supplies, and did at the time mentioned supply, the inhabitants of that vicinity with water for hire, and that connected with and as part of said water system said defendant operated and controlled a certain reservoir situated northeasterly from said fishponds, constructed and maintained on the hillside at a greater elevation; that from said reservoir water was and is conveyed by a pipe to said infirmary and to the water system supplying the residents in the vicinity thereof; that from said reservoir there is and was at all times also a water ditch, leading southwesterly down said hill, which carried and still carries surplus and overflow water from said reservoir into said ditches which supply and did supply water from said natural springs to plaintiff’s said fishponds; that defendant is the owner or tenant of the freehold of the lands upon which defendant maintains said infirmary, reservoir, and pipé line, and the water ditch carrying said surplus and overflow water from its said reservoir — all connected with and part of its said in
For a second cause of action plaintiff alleges substantially tbe same facts as in tbe first cause of action, and demands the same relief, on tbe grounds that tbe acts and omissions complained of constituted a nuisance.
In tbe third cause of action tbe same acts and omissions are repeated, with tbe additional allegation that the defendant was negligent in respect to.tbe matter charged, and upon that ground plaintiff demands tbe same relief.
Defendant demurs to tbe complaint and each alleged cause of action therein, upon tbe ground that it fails to state facts sufficient to constitute a cause of action, and upon tbe further ground that it is uncertain and unintelligible in certain alleged respects.
While tbe complaint is subject to tbe criticism that it is unduly verbose, especially in the paragraphs wbicb allege the wrongs complained of, it is nevertheless sufficiently certain to show tbe grounds upon wbicb plaintiff demands relief. Whether tbe facts alleged constitute a cause of action, in our opinion, presents tbe only question to be determined.
In support of bis first cause of action plaintiff bases bis right of recovery upon article 1, § 22, of tbe Utah Constitution, wbicb provides that “private property shall not be taken or damaged for public use without just compensation.” Tbe fact that tbe reservoir which was being cleansed when tbe alleged injury occurred belonged to tbe defendant, and was being devoted to a public use, is made tbe basis of this contention. In other words, plaintiff invokes tbe constitutional guaranty wbicb is invariably coupled with tbe exercise of tbe right of eminent domain.
A statement of tbe commonly accepted meaning of the term “eminent domain,” as understood in jurisprudence may be illuminating in this connection:
“Eminent domain is the rightful authority which exists in every*552 sovereignty to control and regulate those rights of a public nature which appertain to its citizens in common, and to appropriate and control individual property for the public benefit as the public safety, necessity, convenience, or welfare may demand.
“Eminent domain is the right of a government to take and appropriate private property to public use whenever the exigency requires it.
“Eminent domain embraces only cases where, by the authority of the state, and for public good, the property of the individual is taken without his consent for the purpose of being devoted to some particular use.'”
The foregoing definitions are found in Words and Phrases, First Series, vol. 3, at page 2362. Other paragraphs in the same connection are equally pertinent and comprehensive.
The kinds of property subject to the right, in the very nature of things, is practically unlimited. A distinguished authority on constitutional law states the principle as follows:
“Eveery species of property which the public needs may require, and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain; lands for the public ways; timber, stone, and gravel with which to make or improve the public ways; buildings standing in the way of contemplated improvements, or which for any other reason it becomes necessary to take, remove, or destroy for the public good; streams of water; corporate franchises; and, generally, it may be said, legal and equitable rights of every description — are liable to be thus appropriated.” Cooley, Const. Limitations (6th Ed.) p. 646.
Bearing in mind the foregoing definitions, and the nature of the purposes for which private property may be taken or damaged for public use, it becomes our duty to determine whether or not the injury to plaintiff’s property alleged in the complaint comes within the law regulating the exercise of eminent domain; in other words, whether it comes within the guaranty of the constitutional provision upon which plaintiff relies. It certainly will not be contended that every destruction of property or injury thereto by public officers in the discharge of governmental functions is covered by the constitutional guaranty. Injuries cognizable at common law or in equity are ordinarily not covered by
But, if not taken for a public úse, it may be contended that they were destroyed for a public use. Again the question is pertinent, For what public use were they destroyed? What public use was subserved or benefited by plaintiff’s fish being destroyed, or his fishponds being injured? We can conceive of instances in which private property may be destroyed or injured for a public use. If totally destroyed or rendered valueless, it amounts to a taking within the meaning of the Constitution. U. S. v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539, cited by plaintiff, is a case in point. The principle is stated in the fourth headnote of the case:
“Where the government of the United States, hy the construction of a dam, or other public works, so flooded land belonging to an individual as to totally destroy its value, there is a taking of private property within the scope of the Fifth Amendment.”
That was a case in which the government of the United States, in the exercise of its powers of eminent domain and regulation of commerce, under the authority of acts of Congress, by its officers and agents, placed dams and other obstructions in the Savannah river in such manner as to causé the water to overflow the plaintiff’s land, and render it valueless. The dams and other obstructions were permanent structures, and the injury to the land, which amounted to a total destruction of its value, was also permanent. Here was undoubtedly a taking of private property for a public use, and
Counsel for appellant have cited no case more apt or pertinent to illustrate the distinction between cases within the principle of eminent domain and the case alleged in plaintiff’s complaint.. To the same effect is Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557.
The Constitution of the United States does not in terms provide for compensation in cases where private property is merely damaged for public use, but only where it is taken for such purpose. In that respect it differs from the Utah Constitution, to which reference has been made. But let us suppose that the federal Constitution had provided compensation for damaging, as well as for taking, private property, and suppose further that in U. S. v. Lynah, supra, the damage caused to plaintiff’s land'by the overflow of the river had been such as to only diminish its value, instead of totally destroying it, the principle would, nevertheless, have been the same; the damage would clearly have been for a public use, and the plaintiff would have been entitled to compensation to the extent of his damage, and that, too, within the guaranty of the Constitution.
Such is declared to be the rule in Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638, a case arising under the Constitution of Illinois, in which the provision for compensation in the exercise of eminent domain is the same as ours. The action was to recover damages sustained by reason of the construction by defendant city of a viaduct in the immediate vicinity of plaintiff’s premises. The defendant did the work under a power conferred by its charter and special ordinance authorizing the structure-. Verdict was rendered for plaintiff, and the city appealed. The case finally reached the federal Supreme Court, where the judgment for plaintiff was affirmed. It is a typical case of damage to property for a public use. The question of “taking property” was not involved. There was no physical interference with the prop
Here, again, is exemplified the fundamental principle upon which compensation is allowed in exercising the powers of eminent domain. The structure or work causing
One of the cases cited by plaintiff’s counsel most favorable to their contention is that of Wendell v. Spokane County, 27 Wash. 121, 67 Pac. 576, 91 Am. St. Rep. 825. In that case the county commissioners ordered a county roadway surveyed,- laid out, established, and built, a portion of which ran through a certain lake. They took a portion of the bed of the lake for the purpose of'building the road, and ordered a canal or ditch to be cut out of the lake between the roadbed and plaintiff’s land. The ditch was cut through a natural ridge of land that had theretofore protected plaintiff’s land from the overflow of the lake. The ditch emptied the water onto plaintiff’s land, inflicting the damage complained of. The foregoing facts were alleged in the complaint. Defendant demurred, and the demurrer was sustained. Plaintiff appealed, and the judgment was reversed.
The opening sentence of the opinion of the court states clearly the distinction between that case and the ease at bar. The sentence reads:
“This is an action for damages caused by draining the waters of a lake in Spokane county onto the lands of the plaintiffs, done by order of the board of county commissioners in constructing a road across s'aid lake.” (Italics ours.)
There can be no dispute but that here was an exercise of the power of eminent domain. The work was done exactly as ordered, and the consequences must have been contemplated by the commissioners when they ordered the work. It is perfectly consistent with the fundamental principle to which reference has been made heretofore to hold that the
If we correctly interpret the meaning of counsel’s argument on behalf of appellant, they admit that this court, in Morris v. Railroad, 36 Utah, 14, 102 Pac. 629, held, in effect, that that case came within the provisions of article 1, § 22, of the state Constitution, only because the damages claimed were the “direct, necessary, and unavoidable consequences of the condemnation itself.” The language just quoted is the language of counsel, and not the language of the court. The writer, however, feels justified in assuming that the interpretation made by counsel correctly reflects the court’s opinion.
The action was brought by an abutting owner on a public street for damages resulting from the construction and operation of a railroad thereon. Depreciation of value on account of ingress and egress to and from his property being obstructed by trains and engines constituted the basis of plaintiff’s action. It was not a case of negligence. It was a case of unavoidable injury to an abutting owner, resulting from the proper construction and operation of a railroad on a public street. To the same effect is O’Neill v. Railroad, 38 Utah, 475, 114 Pac. 127.
While counsel for appellant, in effect, admit that the holding of the court in the Utah cases above referred 'to is against their contention, they do not admit that such holding is correct. We are inclined to the view that the court acted advisedly in holding as it did, and in support of that view we refer the reader to the elaborate brief of counsel filed in the case, in which more than 100 cases are cited construing Constitutions and statutes relating to the exercise of eminent domain in various states of the Union.
We are clearly of the opinion that the damages for which compensation is allowed under article 1, § 22, of the state Constitution are such as are the direct consequences
Plaintiff, in bis second cause of action, alleges that the acts complained of constituted a nuisance, and on that ground bases his right of recovery. It is somewhat
Counsel for plaintiff admit in their brief that—
“A suit for damages founded on injury caused by a nuisance is governed by much the same legal principle as a suit founded on the Constitution.”
The cases they cite in discussing the validity of plaintiff’s second cause of action exemplify the truth of their admission. In fact, by far the greater portion of the cases cited in which a county or other municipal corporation is sued for damages are cases in which the plaintiffs might well have based their actions upon the constitutional provision providing compensation for damaging private property for public use. Many of the decisions expressly refer to the constitutional provision as controlling. In practically every case, as far as we have had opportunity to investigate, the injury complained of was the direct, necessary, and, oftentimes, unavoidable consequence of the exercise of the power of the municipality in connection with a public use. In some cases negligence is made the basis of the action, but it is quite generally held that negligence is not an essential element.
It would be impracticable to cite, much less review and distinguish, all the cases to which counsel have called our attention, nor is it necessary so to do. The following cases are fair examples.of the authority upon which they rely: Oklahoma City v. Vetter (Okl.) 179 Pac. 473, 4 A. L. R. 1009; Wendel v. Spokane County, 27 Wash. 121, 67 Pac. 576, 91 Am. St. Rep. 825; Chester v. Brower, 117 Pa. 647, 12 Atl. 577, 2 Am. St. Rep. 713; Guest v. Church Hill, 90 Md. 689, 45 Atl. 882; Langley v. Augusta, 118 Ga. 590, 45 S. E. 486,
Most of the cases cited were actions for damages by abutting owners on public streets for some character of injury caused by improving the streets. Other cases were where the work done by the municipality caused water or sewage to be east or emptied directly on plaintiff’s land. A few of them were for erecting and operating hospitals for the treatment of contagious diseases in the immediate vicinity of residence property. Others were for depositing filth and garbage in close proximity to plaintiff’s premises, and some we are unable to classify, but they are of no special significance in determining the question before the court.
Not a single case has been cited on behalf of appellant in which the injury alleged was so indirect, remote, and in that sense so inconsequential, as .the injury alleged in the case at bar. It is not contended in the present case, nor does it appear from the language of the complaint, that the alleged injury could by any possibility have been within the contemplation of the defendant or those engaged in cleaning the reservoir. On the other hand, the injury must have been entirely unexpected, although due perhaps to some negligence on the part of those engaged in the work in not
The court did not err in sustaining the demurrer to plaintiff’s second alleged cause of action.
“The county was acting in a corporate or private enterprise, from which it derived an income from its waterworks. The employes of the county were negligent in permitting the ditches to become choked and dammed up, and in throwing large quantities of poisonous water into the ditch, and in failing to strengthen and increase the capacity of the ditch, and in permitting the water to overflow and gather poison from the manure, and then to flow into said fishponds carrying said poisons.”
It is contended that the county acts as an arm of the state, and also in a private capacity. In this connection plaintiff relies on the following statutes: Comp. Laws Utah 1917, §§ 1360, 1363; also Comp. Laws Utah 1907, § 511, subds. 30, 40, 42 and 48. These statutes declare that counties are bodies politic and corporate, with such powers as are prescribed by statute or necessarily implied; that they have power to sue and be sued; to purchase and hold such real and personal property, including water rights, as is necessary and proper for county purposes; to make such contracts as are necessary to the exercise of its powers; to manage and dispose of its property as the interests of the inhabitants may require; to provide for the care, maintenance, and relief of the indigent, sick, and dependent poor; to erect hospitals, poor houses, or such other institutions as may be necessary; to provide a farm in connection with the county hospital, infirmary, or poor house, and to make necessary rules and regulations for governing the same. Plaintiff also relies on Comp. Laws Utah 1917, § 2785, providing that the privileges of the county hospital may be extended to persons residing outside the county upon such terms as the board of commissioners may by its rules and regulations prescribe. Also section 2791, same compilation, conferring power on said board to fix such rates for treatment of patients able to assist themselves as may be deemed right and equitable.
It goes without saying that the foregoing statement of the nature, purpose, and powers of the county organizations, as prescribed by the sections of the statutes referred to, is only an abridgment. We have endeavored, however, to specifically
In support of the validity of plaintiff’s alleged third cause of action, counsel do not contend that the county, when acting in a governmental capacity, would be liable for the negligence of its officers or agents for any injury occasioned by their negligence; hence it is not necessary to invoke the doctrine maintained with practical unanimity in nearly every jurisdiction of the country to the effect that municipal corporations, especially county organizations, are not liable in such cases unless made so by express statute. The brief of respondent’s counsel, filed in the case, upon this point is voluminous and conclusive.
Inasmuch, however, as it is alleged in the complaint that the county is engaged in supplying water for hire to persons residing in the neighborhood of the infirmary, plaintiff contends that the rule of respondeat superior applies, and that the county is liable for the negligence of its employés. Many of the cases cited by counsel upon this point lend support to such contention. Brown v. Salt Lake City, 33 Utah, 222, 93 Pac. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004; Bailey v. N. Y. City, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Little v. Holyoke, 177 Mass. 114, 58 N. E. 170, 52 L. R. A. 417; Oliver v. Worcester, 102 Mass. 499, 3 Am. Rep. 485; Wigal v. Parkersburg, 74 W. Va. 25, 81 S. E. 554, 52 L. R. A. (N. S.) 465; Western Sav. Fund v. Phila., 31 Pa. 183, 72 Am. Dec. 730; Wagner v. Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519; Esberg v. Portland, 34 Or. 282, 55 Pac. 961, 43 L. R. A. 435, 75 Am. St. Rep. 651; Piper v. Madison, 140 Wis. 311, 122 N. W. 730, 25 L. R. A. (N. S.) 239, and note, 245, 133 Am. St. Rep. 1078; Wallace v. Muscatine, 4 G. Greene (Iowa) 373, 61 Am. Dec. 131; Templin v. Iowa City, 14 Iowa, 59, 81 Am. Dec. 455; Denver v. Davis, 37 Colo. 370, 86 Pac. 1027, 6 L. R. A. (N. S.) 1013, 119 Am. St. Rep. 293, 11 Ann. Cas. 187; New Castle v. Harvey, 54 Ind. App. 243, 102 N. E. 878; 19 R. C. L. p. 1123,
We have not before ns the statutes conferring power upon the various municipal corporations involved in the cases referred to, and therefore we are unable to determine whether or not such municipalities kept within their charter powers in engaging in private or corporate business. It seems to us that in determining the value of these cases as precedents everything depends upon that consideration. If they were authorized to engage in such business, as was Salt Lake City in the Brown Case, cited by plaintiff, we see no objection to applying the common-law doctrine of respondeat superior, •and holding the municipality liable. On the other hand, if they were entirely without authority to engage
In Reese on Ultra Vires, § 170, the doctrine is stated as follows:
“Municipal corporations can exercise only sucli powers as are expressly granted to them, or such as are necessary to carry into effect those that are granted. No powers can he implied except such as are essential to the objects and purposes of the corporar .tion as created and established. To the extent of their authority they can bind the people and the property subject to their regulation and governmental control by what they do, but beyond their corporate powers their acts are of no effect.”
In 28 Cyc., at page 1277, it is said:
“A municipal corporation cannot confer upon its agents or officers lawful authority to represent it beyond the scope of its charter powers, and therefore is not civilly liable for damages suffered by individuals, in person or property, which are caused by the tortious acts of municipal agents or officers assuming to represent it in matters wholly ultra vires, whether such acts are directed by the corporation or are done without express direction or corporate sanction.”
The note referred to in the text cites eases from 22 states of the Union, including Utah. It also cites cases from the United States courts and from Canada. In Royce v. Salt
“It may safely he asserted that torts or wrongful acts of an agent or officer of a municipal corporation, not resting upon contract, hut which are ‘ultra vires,’ in the proper sense and meaning of the term, will not create any implied liability on the part of the corporation. 2 Dill. Mun. Corp. § 969.”
The doctrine seems to be elementary. The authorities we have cited are under the head of municipal corporations, which term ordinarily refers to incorporated cities. If such is the rule which applies to incorporated cities, a fortiori it should apply to county organizations the powers of which are usually more restricted. McQuillan, Mun. Corp., vol. 6, § 2605.
This brings us to the question upon which the final issue must be determined. What power or authority had Salt Lake county to engage in the business of furnishing its inhabitants with water for hire ? What provision of the statute justifies this assumption of power? The authority does not appear in any of the sections to which counsel have invited our attention, and we have not been able to find it in any other section, and hence conclude that the power does not exist. It is conceivable that such a power might be exercised to a limited extent under certain circumstances and conditions (Muir v. Murray City, 55 Utah 368, 186 Pac. 433; 19 R. C. L. p. 788); but no such circumstances or conditions appear
For the reasons stated it becomes our duty to affirm the judgment of the trial court. Before concluding, however, there is one matter connected with the case that deserves at least a passing notice. We fully appreciate the solicitude of
The judgment of the trial court is affirmed, at appellant’s cost.