11 Utah 331 | Utah | 1895
The plaintiff brought this action to recover $30,000 damages, which he claims he sustained by reason of the flooding of his land by the defendants. The jury returned a verdict in his favor, assessing damages at $8,750, and the court rendered judgment for that amount and for costs of •suit. A motion for a new trial, regularly made and argued, was denied, and thereupon the defendants appealed to this court, both from the judgment and from the order denying the motion for a new trial, assigning many errors, only •a few of which it will be necessary to consider. As shown by the record, it is alleged in the complaint, substantially, that at the time of the commission of the grievances complained of, and at the time of the bringing of this suit, the plaintiff was the owner and in the possession of 1,617.50 acres of land, situate in Utah county, in this territory, and bordering on the west, southwest, and south by the waters of Utah Lake; that he, with his family, lived •on and occupied the land; that the Jordan river is the natural outlet of Utah' Lake; that on the 15th day of April, 1891, against the rights of the plaintiff, the defendants wrongfully and jointly erected, and ever since have “ jointly maintained numerous dams across the said Jordan river, near said lake, to a great height, and have thereby, during all of said time, caused the water in said lake to rise four feet and nine inches above its natural
It will be noticed that the cause of action set out in the complaint is based on the tortious acts of the defendants. The plaintiff charges that they erected and maintained dams and obstructions across the outlet of the lake, and thereby prevented the natural flow of the water from the lake, and caused it to rise and damage his land. 'These acts of the defendants are characterized as wrongful •and in violation of his rights. It must be conceded that this action is well founded, and if the defendants have wrongfully erected dams and obstructions in the river, as alleged in the complaint, and have thereby injured the plaintiff’s land, there can be no question that they are liable to him in damages, for no person has a right to
The first question raised in- the record is whether the-
The judgment in this case cannot be affirmed, not only because the proof shows a different case than- that set forth in the complaint, but because its affirmance would manifestly jeopardize the rights of the defendants, as between the parties, secured to them by the terms of the grant, which was set up in the answer, put in evidence by the plaintiff, and treated by all parties at the trial as -valid. If it were permitted to stand, it would, in effect, ■declare that the allegations of the complaint were true, and that those contained in the answer were untrue. This would be a finding by the court and jury, in accordance with the theory of the complaint, that the defendants had no right to erect dams in the river at all, or to obstruct in any way the natural flow of the water from
Herman, in his commentaries on the Law of Estoppel and Ees Judicata, in volume 1, § 247, states the law relating to the estoppel of a judgment as follows: “ The-estoppel of a judgment extends beyond what appears on its face. It includes every allegation made by the plaintiff' and denied by the defendant. It extends to every fact in issue between the parties that was adjudicated in the-action; and, while it not only proves and establishes the case of the successful party, it denies and refutes that of the other.” Black, in his treatise on the Law of Judgments, in volume 2, § 625, says: “Where the declaration in the first suit states a particular matter as the ground of action, and issue is taken thereon by the defendant^ parol proof is not admissible to show that a different subject was litigated upon the trial.” In Outram v. Morewood, 3 East, 346, where it was held that the defendants were-estopped in an action of trespass for digging coal out of a mine, from alleging title to it, because, in a previous case of trespass they had set up the same title which was. determined against them, Lord Ellenborough said: “It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery itself, in an action of trespass, is.
The conclusion reached disposes of the case, but, as another trial may be had upon amended pleadings, if the-parties should wish to amend, we think it important to-pass on several other points raised in the briefs of counsel, as the same questions may again come up in case of a retrial.
The first of these is whether the court erred in excluding the testimony of several of the defendants’ witnesses as to the action of certain commissioners appointed by the parties, under the terms of the grant, to carry into effect the provisions thereof. It appears that the evidence in question related to the practice of the commissioners in regard to permitting obstructions to be placed in the-dams, without an express order from them, to raise the water in the lake. This was excluded on the ground that they had kept a record of their proceedings, and that such record was the best evidence. TJnder the terms of the contract, the commissioners were the agents of all parties to the grant, and under its terms they were neither required nor authorized to keep a record of their proceedings. They were simply required to carry the provisions-thereof into effect. If, then, without requirement or authority, they kept a record, such record had simply the-quality and effect of a memorandum, and while, under-some circumstances, it might be admissible in evidence, its quality as evidence would not be such as to exclude parol testimony concerning the same matters. The mere fact-that such a board keeps minutes, which may be evidence, does not exclude parol proof of what was done, when its object is to ascertain the practical construction which the parties to an instrument have given to such instrument. The construction which parties to a contract have them
We are also of the opinion, upon examination of the-evidence as it appears in the record, that the court erred in charging the jury, as matter of law, that the plaintiff' had shown title to all the land described in his complaint, except ten acres. This question ought to have been submitted to the jury.
We do not deem it necessary to discuss the other question raised in the record, in view of the disposition made-of those already considered. The judgment is reversed,, and the cause remanded, with directions to the court below to grant a new trial, and permit the parties to amend, their pleadings, should they desire to do so, and on such terms as may be just.