134 P. 626 | Utah | 1913
Respondent brought this action to recover damages to his land and growing crops which he alleged were caused by flood waters which were cast upon his land through the acts of appellants. The action was against the State of Utah, the state board of land commissioners as such, against the individuals constituting said' board as such, and against the state engineer and his assistant. It is alleged in the complaint that the parties above named “owned and controlled a large canal . . . through which canal they conducted water for irrigating purposes.” After describing respondent’s land and giving the course and direction of said canal, and alleging that in connection therewith appellants also constructed a flume over the same and an “undershot” or culvert under it, the acts of appellants causing the alleged damages are averred to consist in having constructed certain embankments across certain canyons, thereby diverting the waters which gathered in and flowed from the same during rainstorms, and that, by reason of the acts aforesaid, it is alleged “the waters from said canyons were diverted from their natural course and channel and! flowed down, across, and under said canal and upon plaintiff’s (respondent’s) said land, flooding and inundating the same, and the said waters during said time so diverted from their natural course
The individuals constituting the state land board entered a general demurrer to the complaint and the board of land commissioners as such demurred to the complaint upon the following grounds:
(1) That the district court was without jurisdiction to entertain the action; (2) that there was a mis joiner of parties defendant; and (3) that the complaint was deficient in substance. The demurrers were overruled, and the State of Utah and all the appellants filed a joint answer in which, after denying practically all of the material allegations of the complaint, it is in substance averred that in the year 1908 said! board of land commissioners, pursuant to law, and for and in behalf of the State of Utah, procured title to lands in Piute County, Utah, to be used as a reservoir; that said reservoir since 1908. has been and still is in process of con
The ease was tried to the court without a, jury, and during the trial the court entered a nonsuit in favor of the State of Utah and in favor of the individuals constituting the state board of land commissioners, but refused a nonsuit in favor of the state engineer and his assistant. The court found' the issues in fa.vor of the respondent and found that he was damaged to the extent of $800. The findings of fact follow substantially the allegations contained in the complaint, except that the court specifically found that the averment that the flood was unprecedented was not sustained by the evidence. The court also made conclusions of law in accordance with the findings of fact, and entered judgment against the state board of land commissioners in form, but in fact against the State of Utah or its reservoir fund. The court directed that the judgment be paid out of said fund.
The record is presented upon appeal to this court, and we are asked to reverse the judgment upon substantially the following grounds:
(1) That the appellants in constructing the canal and in doing the acts complained of did not encroach upon respondent’s land, and the injuries and damages complained of were not caused as a direct or necessary result of constructing the canal or doing the work complained of, but were merely consequential; that the canal was constructed by authority of and pursuant to law for a lawful and public purpose, and hence appellants, if liable at all for acts done, are so only in case they were negligent or unskillful in dbing the acts, neither of which is either alleged or proved; (2) that the action is in fact against the State of Utah, which, without its consent, cannot be sued in its own courts; (8) that the judgment is contrary to law; and (4) that the injury and damages complained of were caused from unavoidable accident and the act of God.
As the evidence now stands no other conclusion is permissible than that the interference with the flood waters from the canyons merely amounted to confining them within a narrow channel in order to prevent them from flowing into the canal, and there mingling with the large volume of water therein, which, if permitted, might, and in all probability would, break the banks of the canal, and thus cause- both the water in the canal and the flood waters to flow over and damage and possibly ruin large portions of land lying adjacent to and under the canal. To prevent this the engineer, who was competent and skillful, exercised his best judgment. There is no evidence in the record tending to prove that the damages to respondent’s land or crops were caused by the negligent or unskillful acts of the appellants or of any •of them, or by reason of the incompetency of those who planned or did the work. Moreover, the break in the canal which caused all of respondent’s damages occurred at a point where he diverted' his water from the canal to irrigate his land and which diverting appliance he, under the direction of the state engineer, placed there himself, and he makes no complaint that the engineer’s plan or the work was insufficient for the purpose. In view of the facts disclosed by this record, we axe clearly of the opinion that no action could be sustained even against
Upon this point the rule is well stated by the New York Court of Appeals in a case which in principle is precisely like the case at bar, namely Atwater v. Trustees, etc., 124 N. Y. at page 608, 27 N. E. at page 387, where the court says:
“The doctrine, however, is well established, in this state that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized by law, are not liable for consequential damages occasioned by it to others, unless caused by misconduct, negligence, or unskillfulness.”
The author of Weil, Water Nights in the Western States, in his third edition, section 461, after stating that in constructing and using irrigating ditches, flumes, etc., the owner or user is not an insurer against damages caused to others from overflow and leakage of the canal or ditch, says: ■
“The ditch owner is not liable merely because the break or escape occurred, but only if it occurred through his negligence. Negligence must be shown. It is not even a case of res ipsa loq-uitur, and negligence is not presumed from the mere fact that a break or escape occurred. . . . The ordinary rule of negligence, that there must be a failure to' use the care which an ordinarily prudent man would have taken under the circumstances, applies.”
The Supreme Court of Oregon in a case involving the question of interference with the usual course or flow of water lays down the rule in the following words:
“The true test, considering all the circumstances, is: Ought a competent and skillful engineer reasonably to have anticipated such a flood as caused the damage to the plaintiff and have made provisions therefor?”
(Price v. Oregon Ry. Co., 47 Or. 355, 83 Pac. 845).
Wiel, in the section already quoted from expresses the
“Canal companies and others attempting to control and use water are only required to anticipate and prepare to meet such emergencies as may reasonably he expected to arise in the course of nature. They are not required to meet unlooked for and overwhelming displays of power — such as storms of such unusual violence as to surprise cautious and reasonable men.”
The evidence is uncontradicted in this case that the greatest known rainfall during one storm in the United States, falling upon an area such as one of the canyons in question contained, amounted to 163 second feet, while it is shown that the rainfall causing the damage in question amounted to 336 second' feet flowing through the channel. It also appears from the evidence that in the other canyon whose area, was larger the fall amounted to over 600 second feet. It also was made to appear that the flume intended to carry off the water from the smaller canyon had a capacity of carrying off 300 second feet, or nearly twice the greatest known rainfall in the United States, and that the culvert or undershot which was intended to carry off the water from the other canyon performed the duty it was intended to perform. If the test laid down by the Oregon Supreme Court there fore should be applied in this case, still the evidence would fall far short of permitting a recovery. With respect to this point, the fallacy of respondent’s contention consists in assuming that unless it is established that the flood' causing the damage in question was unprecedented, and therefore constituted an act of God, appellants are liable. The law is that in making improvements like the one in question the one making them “is under no obligation to anticipate or provide against extraordinary floods. A flood within the
*494 “They shall, also, constitute a board of examiners, with power to examine all claims against the state except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law; and’ no claim against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the legislature without having been considered and acted upon by the said board of examiners.”
Appropriate statutes have been enacted to make the foregoing provisions effective. The States of Nevada and Idaho have precisely the same constitutional provision. In Nevada the provision is found in article 4, sec. 22, of the Constitution, and in Idaho it constitutes section 5 of article 10. In both those states there are, however, also constitutional provisions to the effect that the state may be sued in certain courts for certain purposes. Notwithstanding the latter provision, however, the Supreme Court of Nevada has held that no claim against the state can legally he paid until passed on by the board of examiners, and no 'action can be brought in the courts of the state until the claim has been passed on by said board, and the claimant is dissatisfied with the decision thereof. (State v. Hallock, 20 Nev. 326, 22 Pac. 123.) To the same effect is the holding of the Supreme Court of Idaho. (Pyke v. Steunenberg et al., 5 Idaho, 614, 51 Pac. 614.) In a very recent case the Supreme Court of Idaho has again considered the question, and in our judgment has settled it under a constitutional provision like ours. The court there holds that, although expressly authorized to entertain actions against the state, yet the court cannot) do so until the claim has been submitted to and passed upon by the board of examiners. (Thomas et al. v. State, 16 Idaho, 81, 100 Pac. 761.) The reasoning of both the Nevada and Idaho Supreme Courts seems reasonable and logical. It is pointed out by those courts that the board of examiners is a creature of the Constitution, and that the courts are no more than that. It is also suggested that neither can exercise powers that are withheld by that instrument. The people of this state, who are responsible for the Constitution and its terms, had the right
From the foregoing it is manifest that the people of this state have not arbitrarily, as they might have done, shielded the state from being sued in the courts, but they did so for good and sufficient reasons. It cannot well be disputed that, if in this state one court possessing original jurisdiction may entertain actions against the state, then all courts within their jurisdictional limits have such power. If one kind of a claim may be sued, all kinds may. The state, therefore, could be -sued in every court of original jurisdiction in the state and its legal department might find itself wholly unable to attend to the litigation against the state. The constitutional provision is therefore a wise as well as a practical one. By what we have said we do not mean that state officers, or state boards, or state agencies may not, under certain circumstances, be sued in the courts. Such cases abound in the reports of this as well as other states. Nor do we mean that the state board of examiners is under the Constitution immune from suit. That such, is not the case is pointed out in Thoreson v. State Board of Examiners, 19 Utah 18, 57 Pac.
“When a judgment has been rendered, the liability of the •state has been judicially ascertained, but there the power of the ■court ends. The state is at liberty to determine for itself whether to pay the judgment or not. . . . The courts are powerless. "Everything after the judgment depends on the will of the state.”
The same thought is expressed by the Supreme Court of Appeals of Virginia in Higginbotham, etc., v. Commonwealth, 66 Va. 641, where it said:
“All the court could do would be to ascertain and render judgment for the debt. Whether it shall be paid or not rests with the legislative department.”
In tlhis state, as we have seen, even the legislative department is powerless until the claimant has complied with the ■constitutional provision we have quoted. In no possible view, therefore, can the judgment in this case be sustained'.
In view of the fact that the result would still be the same whether we held one way or the other upon the question of the defense of vis major or the act of God interposed by appellants, we refrain from passing upon that question in this case.
To obviate any misconception with respect to the scope of "this opinion, we desire to state that we are not passing upon ‘the powers of the state board of land commissioners in allowing claims for reservoir sites, for rights of way, for canals or ditches, or for direct injuries or damages to. land which are ■necessarily caused by the construction of reservoirs, canals, -or ditches and which are not merely consequential as in the >case at bar.