71 P. 1067 | Utah | 1903
Lead Opinion
In this case the plaintiff seeks, by virtue
In the first instance, the appellant insists that the court erred in overruling the defendant’s demurrer to' the complaint, because, as is urged, no cause of action was therein stated. This position is not sound. Without referring to the allegations of the complaint in detail, we are of the opinion that a cause of action is sufficiently stated, notwithstanding the contention by the appellant that the facts alleged are not sufficient to show an appropriation of the water for the purposes of the plaintiff’s power plant. That such appropriation was in fact made, and that the same is sufficient in law for those purposes, are matters which were decided in favor of the power company in the case of Salt Lake City v. Salt Lake City Water & Elec. Power Co., 24 Utah 249, 67 Pac. 672, and therefore we do not deem further discussion of this point herein important, except to refer to some of the testimony of the defendant showing an actual use of the water by the power company.
The witness Kelsey, who was the city engineer of Salt Lake City, and was familiar with the locus of the power plant, and with its flume connecting with the Jordan and Salt Lake canal, and with the canal of Salt Lake City, testified, among other things, as follows: “I was in the city’s'service when ■the connection was made. I Ruew that at one time the power company used the water through the powerhouse and delivered it into the city canal under some agreement between the city and the power company, and then that agreement was abrogated and the disconnection was made. I do nQt know
It thus appears that the water was not only diverted for the secondary use, but actually used for the purposes intended, and this with the defendant’s consent and agreement
Section 3588, here referred to, enumerates, among other things, ditches and flumes used to supply water for the operation of machinery, for the purpose of generating and transmitting electricity for power, light, and heat, as subjects in behalf of which the right of eminent domain may be exercised. That these provisions of the law are broad and comprehensive enough to include such cases as the one at bar we entertain no doubt. Evidently the Legislature intended, by enacting them, to provide a remedy for the removal, as far as possible, of all obstacles which would be a menace to industry, progress, and the upbuilding of the state, and this is in consonance with the spirit of our Constitution. At the time the motion was made the evidence clearly showed that the plaintiff had made out a prima facie case, and that it fell within the terms of the statute. The nonsuit was therefore properly denied.
It is further insisted that the court erred in its judgment for the reason that the Constitution, in section 6, article 11, inhibits the alienation, by a municipal corporation, of
The construction then given was impliedly adopted in this case when it was before us on the application for a writ of certiorari, and upon further consideration we have no disposition to change it.
Nor do we think, as contended by counsel for the appellant, that the court erred in .admitting in evidence the judgment and decree of Salt Lake City v. Salt Lake City
We find no reversible error in the record. . The judgment is affirmed, with costs.
Dissenting Opinion
(dissenting). — I dissent from.' my associates in this case on the grounds stated in my dissenting opinion in the case between the samé parties, reported in 24 Utah 249-269, 67 Pac. 672, and for the reason that the real property belonging to the city and appropriated to some public use, as was the case in respect to the property in question in