North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co. , 23 Utah 199 ( 1901 )

PER CURIAM.:

The original action upon which these proceedings are predicated was commenced in November 1895, wherein the plaintiff claimed the ownership of certain dams, flumes, ditches, water rights, and water and that the defendants had deprived it of the use and enjoyment of the same since 1892, and still deprived it of the use and enjoyment of its property, and prayed for an injunction and for damages. The equitable issues, only, arising under the complaint, were tried in the court below, and the question of damages was expressly reserved for bearing after tbe determination of tbe equitable issues. A decree was rendered for tbe defendants. On appeal to this court the decree of tbe lower court was reversed and a decree directed to be entered in favor of tbe plaintiff, with costs. Thereafter a supplemental complaint was filed, charging that continuously since November, 1895, to June, 1898, defendants bad discharged into plaintiff’s irrigation system, foul and impure seepage and drainage water through a drain ditch by them constructed and maintained from Decker’s Lake to White Lake, as charged in the original complaint, by reason of which the plaintiff was wholly deprived of the use of its irrigation system during the period aforesaid, to its damage in the sum of $30,000.

Upon the trial of the legal issues, involving the question of damages the appellants (defendants below) claimed that the court erred in overruling their objection to the further trial or consideration of any issue as to damages, because the court had no jurisdiction to proceed in the premises a final decree having been entered for an injunction and costs.

It is clear from the record that only the equitable issues involved in the case were first tried and decided, and it is equally clear that by agreement of counsel, entered of record, and recited in the decree of the court below, the question of damages was reserved for hearing after the determination of the equitable issues.

The first decree of June 21, 1895, on the equitable issues was final upon the issues submitted, tried and determined, but as to the question of damages which had been expressly reserved for determination until after the equitable issues were disposed of, it was not final until the issue as to damages had been tried. The, court very properly left the question of damages until after the main question was determined. The fact that costs had been taxed on the first hearing on appeal and paid on execution, does not change the rule, nor deprive the respondent of its right to proceed to a final hearing of its case as to damages.

Upon the first hearing, the district court rendered its decree in favor of the defendants upon the equitable issues. If this decree had not been reversed, it would have been final as to damages. In that ease there would have been no other question to try. That decree found against the plaintiff. Upon appeal the decree was reversed and one entered for the plaintiff. The first decree was final as it disposed of the litigation between the parties against the plaintiff, and an appeal would lie from that judgment. If the plaintiff had no equitable rights under the complaint, it would follow that it was entitled to no damages, as the latter were predicated upon the former, and costs would follow the determination of the case in the Supreme Court, because that determination wholly reversed the case and established plaintiff’s right in the premises. The next step was to proceed to a hearing upon the remaining issues that were expressly reserved at the first hearing. But for the reversal by this court there would have been no other issue to try.

The amended complaint was filed November 1895. The decree for injunction was entered June 21, 1898. The plaintiff had been deprived of the use of its property since and including 1892. The supplemental complaint was filed March 13, 1895, under the provisions of section 2998, R. S., and embraced damage^ prior to that,date.

We find no error in permitting the supplemental complaint to be filed, nor in allowing proof under it.

No claim for special damages was made, as appears from the complaint, but it is claimed that the plaintiff has been damaged in its said property, and in its use thereof aforesaid. Plaintiff claims that the loss of the use by the befoulment of tbe water in tbe irrigating ditch is tbe obvious and necessary consequence of tbe act complained of, and that it was unnecessary to aver or prove special damages.

This position is controverted by tbe appellants, who also contend that tbe evidence is insufficient to support tbe decree, in that there is no evidence of any damage shown.

In Croco v. Oregon Short Line, 18 Utah 311, this court held tbe proper rule to be that “The plaintiff is always entitled to recover all damages whieh are the natural and proximate consequence of, and are traceable to the act complained of and those damages which are probable, traceable to, and necessarily result from the injury are termed general, and may be shown under the general allegation of the complaint. Only those damages, which are not the probable and necessary result of the injury are termed special, and are required to be stated specially in the complaint.” 3 Suth. on Damages, (2 Ed.) 2261-2; Johnson v. McKee, 27 Mich. 471.

We are of the opinion that tbe plaintiff was entitled to recover all damages which were the natural, obvious and proximate consequence and result of tbe act complained of, under tbe general allegation for damages. Where, from tbe nature of tbe action, as in personal torts, tbe law furnishes no rule for tbe measurement of damages, their assessment is peculiarly within the province of the court or jury. Wood on Nuisances, (2 Ed.) 866; Aldrich v. Palmer, 24 Cal. 513.

It is contended here that the measure of damages for the loss of the use of the water by the wrongful acts of the appellants is measured by the value of tbe water so lost or its use destroyed.

Handforth v. Maynard, 154 Mass. 414, was an action for damages for tbe loss of ice occasioned by tbe defendant drawing the water from a pond, and tbe court held, that “tbe true measure of his damages was tbe value of his right to harvest the-ice upon tbe pond and so make it bis property at tbe time when tbe ice was destroyed, and plaintiffs right made worthless by tbe defendant’s act.”

In Farr v. Griffith, 9 Utah 419, it is held that in a suit for damages for flooding certain ice ponds used for putting up ice, tbe measure of damages will be tbe value of tbe ice that might have been put up with reasonable diligence, less tbe cost of putting it in tbe ice bouse.

Tbe testimony in this case is very voluminous, and when considered together.with tbe findings of fact as directed by this court, and which were placed in evidence, tends to show that tbe respondent owns and has operated a large system for irrigation; that a large quantity of land, consisting of several thousand acres owned by tbe respondent’s stockholders and others is under this system, and is capable of irrigation, and all were dependent upon this canal for irrigation; that up to 1892 its waters flowing through its ditches were used for irrigation and domestic purposes; that much of tbe land under plaintiff’s canal would be productive and valuable if irrigated with suitable water; that its ditches carried about 90 cubic feet of water per second, and prior to 1892 irrigated about 9,000 acres of land, and .that the reasonable yearly market value of tbe water from 1892 to 1898 inclusive for irrigation purposes, bad it not been befouled, ranged from fifteen to twenty-four thousand dollars, or as some witnesses expressed it about $1.80 per acre; that there were homestead and desert claims and other land that was and could be watered from the ditches since 1892; that owing to the drainage system, artificially constructed by the appellants, quantities of foul, impure, mineralized, seepage and drainage water, destructive to vegetation, was wrongfully discharged into the respondent’s system of ditches by the appellants, which deprived the respondent of the use of its water, and rendered it unfit for domestic and irrigation purposes during the irrigating seasons since and including 1892, and that the said befouled water was emptied into respondent’s canal and' became a nuisance.

A statement of the facts embraced in the former hearing, and the orders and findings as directed, will be found in 16 Utah 246, to which reference is had.

Where a wrongful act in its nature continuous, is once shown, which results in an injury to another, the presumption follows that it continues until the contrary appears, and damages which are the natural and proximate consequences of the wrongful act and result from it, may be recovered by the injured party, by showing his right and the amount of damages resulting from being deprived of it, under the general allegation for damages in a complaint.

Respondent was deprived of the use of the water in its system of ditches by the wrongful acts of the appellants. What the water was worth in the market for irrigation purposes was a proper inquiry.

Under this state of facts we are of the opinion that the evidence is sufficient to sustain the findings and judgment. We find no reversible error in the record. The judgment of the district court is affirmed, with costs.

Baslcin, J., dissents.