| Show SUPREME COURT OPINION Samuel Levy Appellant l Supreme court Salt LakeCity J I Utah Territory Respondent The plaintiff in his complaint alleges that the defenjji s a municipal mu-nicipal corporation organized by and under an act of tae Legislature of Utah That under and by virtue of the power granted by defendants charter the defendant has taken the entire control and possession of all the flowing waters and the water courses within its territorial limits that on the 1st day of July 1880 th9 defendant had exercised such control con-trol and possession that by virtue of its ordinances it excluded all persons per-sons from any control over or interference inter-ference with the abundant waters which were flowing in the city under penalties tobe sued for and and collected for the benefit of said city and from all use of said waters except such as should be distributed by said defendants agents and servants ser-vants to persons paying therefor that on said 1st day of July 1880 the defendant turned the waters aforesaid then in its control and possession and flowing in the vicinity vicin-ity of the plaintiffs lot or premises into and upon the land adjacent to the plaintiffs premises upon which was plaintiffs cellar in which was stored a stock of tobacco owned by the plaintiff and wrongfully permitted per-mitted and caused the said waters to run in great volume into and upon the said adjacent land for along a-long time and there to accumulate in a large body without the knowledge knowl-edge or consent of the plaintiff and thereto soak into the ground and dIscharge itself into said cellar ana thereby filled said cellar with water and ruined said stock of tobacco without any fault or negligence of the plaintiff to the damage of the plaintiff in the sum of 5030 The defendant in its answer denies that the tobacco mentioned in the complaint was owned or stored by the plaintiff as alleged admits that it is a municipal corporation as charged but denies that by virtue of its charter right or power or otherwise it has taken the entire or any control or possession of all or any of the waters or watercourses water-courses within said city whatsoever whatso-ever or that it exercises such control con-trol The defendant also makes a specific denial of the allegations of the complaint and alleges con tributary negligence on the part of the plaintiff The answer also contains con-tains the following sentence Defendant De-fendant further says and admits that by virtue of its chartered power and as by its charter it was and is required to do it has assumed to and does regulate and control the 1 distribution of the waters flowing into said city throughout such public i pub-lic channelsas it deems most advantageous advan-tageous to the inhabitants of said city and in such a manner only as shall prevent the unnecessary waste of such waters That defendant does not claim the ownership or possession pos-session of such waters and never has so claimed such waters That defendant does claim the right and the same is enjoined as a duty upon defendant by its charter to regulate and control the distribution of such water flowing throughout the public channels or water courses in said city for the respective use and benefit of the inhabitants ot said city who are the owner of and entitled to the use of such waters and not further or otherwise On the trial < it the conclusion of the plaintiffs case the defendant moved for a nonsuit which was by the court granted A municipal corporation is created by legislative act for the purpose of enabling its inhabitants to manage and control their local affairs in other words that they may have the right of local selfgovernment within with-in the limits of and in accordance with the provisions of its charter which is its constitutionthe source of all of its authority and powers creating and denning its duties Mr Dillon in his work on municipal corporations oefiLui 89 says It is a general and undisputed proposition proposi-tion of law that a municipal corporation corpor-ation posse s s and can exercise the following powers and no others First those granted in express words second those necessarily or fairly implied in or incidental to the poweio expressly gtdiued j third those essential to the declared objects ob-jects and puipoaes of the corpora tion not simply convenient but indispensable in-dispensable Where power to act is clearly given the right of the city to act byius nithoiitiz6l l officers or agerua itLin t cue limits and scope of the granted power cannst be uuiciaiij intciieieU with or ques tioned except in cases of imputed frau o rtlitiv vitLIn the province commuted to its charge there is a manifest invasion of private rights The puwti i xoo necessarily carries Kltl jt tli right of determining the manner of acting and of executing the power and if a city by its common com-mon council or other authorized agents in undertaking to carry out or execute a power granted by its charter commits a wrongful act causing a direct injury to the person or pr > porfy of another outside of the limits of its public work then in such case it becomes liable for sucn injury in a private action In Perry et al vs City of Worcester 6 Gray 544 Chief Justice Shaw says A public work authorized by law must be executed in a reasonably proper and skilful manner with a just regard to the rights of private owners of estate If done otherwise the damage is mot necessarily incident inci-dent to the accomplishment of the public objectbut to the improper and unskillful manner of doing it such damage ta private property is not warranted by the authority under color of which is dose and is mot1 = = 5 justifiable and a wrong for there dress of which an action of tort lie This I I proposition fiaw so clearly expressed by this lease and eminent jurist is so universal1 ed y and adoptedand so abundantly sustains by authority that citation caseJ a of cases would be useless 3 The charter of the defendant empowers em-powers it to distribute control and so regulate the waters flOwing into b the city throughout such channel as may be most advantageous s and to prevent the unnecessary waste of water And for the pm pose of carrying out and executing this power ifcalso grants to the city power by ordinance to annually levy y and collect taxes on the assessed value of all real and personal estate or property in the city made taxable by the laws of the territory not to exceed one and one quarter mills son the dollar to control the waters of 5 said city From the ordinance i in evidence it cannot be pretended that the city had not accepted these j I previsions and was not at the time of the alleged injury to plaintiffs 1 property acting upon and under j them j and in its answer it claims the right and the same is enjoined 1 as a duty upon defendant by its charter to regulate and control the distribution of the waters flowing throughout the public channels or water courses in the city for there spective use and benefit of its inhab itants who are the owners of and entitled to the use of such waters but not further or otherwise but says the defendant does not claim the ownership or possession of such waters and never has so claimed such waters The fact that the de fendant does not claim to own the waters is of no importance in the consideration of a claim for dam al 1 es for a wrongful or negligent use of them The waters of a stream running through a city do not belong to the corporation but if it in the performance of a public duty builds a bridge over the stream in an improper and unskillful manner man-ner or if having built it in all respect re-spect in a proper and skillful manner man-ner it ceases to have a just regard for the rights of private owners of adjacent estate and becomes neg ligent in sustaining and keeping the same in good repair and thereby private property is damaged it cannot can-not escape the just responsibility for its negligence Perry et al vs Worcester By the testimony produced pro-duced on trial it appeared that the defendant as a part of its general plan of irrigation had constructed a water ditch near to one side of one of its streets from this which unquestionably unquestion-ably is a public ditch or channel flowed the water which irrigated the premises of the plaintiff and others and filled the plaintiffs cellar and caused the damage complained of This ditch belongs to the city was under its soleand exclusive control trol the expense of its construction was paid by the defendant By its ordinance it authorizes and directs a payment in the nature of a special assessment upon those who make application for the use of the water for the purpose of constructing and keeping in repair all gates dams sluices flumes and ditches necessary to convey the water from the main or natural water channel to the premises of such applicant The city assumes the sole and exclusive control management and distribu tion of the waters provides for the appointment of a watermaster and assigns to him the duty of seeing to the proper location cjnstructio2 and repair of all gates dams flume ditches and reservoirs that water may not be wasted streets or sidewalks overflowed or obstructed ob-structed or private property damaged This duty or power of managing and controlling the waters of the city granted by the charter accompanied with ample power to raise the necessary means of carrying carry-ing out the same when so far executed that nothing remains toe > to-e done except to mantge and con trol the waters in the channels or ditches constructed for them by the city and to permit them to flow upon the grounds of the several persons who are entitled to the same during the hours and in accordance cordance with the city ordinances or the regulation of the atermas ter made in compliance therewith is certainly not judicial but minis terial and the performance of this duty is accompanied with obliga tions requiring fidelity to the per sons who by the payment of their money to the city for the use of the water have become entitled thereto and a neglect to perform this duty with reasonable care and prudence resulting in damages to such person per-son entitles him to an action for the damages sustained by him Dillon on Municipal Corporations Sections 6G9SO Merrifieldes Worcester 110 Mass 216 Lloyd vs Mayor of New York 5 N Y 369 Burton w City of Syracuse 36 N Y 54 Weed vs Village of Balston Spa 76 N Y 329 f Hines vs City of Lockport 50 N Y 236 233 Veightman vs The Corporation of Washington 1 Black 39 The distinction between the liability bility of a municipal corporation made by the acceptance of its city charter and the involuntary quasi corporations known as counties towns etc must not be forgotten In Moore vs the Inhabitants of the Mass 247 It town of Leicester 9 was held that a quasi corporation is mot liable for the neglect or a corporate duty unless such action be given by some statute InL g nan et al vs the County of st Lotus et a162 Mo 313 the court qU at 11 g Rand lp > from Bigelow vs RandolPbfvale Gray Ml says iiTbL5 in1 ted of law however is of ii J or application It is applied iI1 case orris towns to the neglect or only ortiOSe those lion of a town to performall on duties which are imposed as towns without their corporate hoe > w sent and not to the neglect of which a town incurs obligations is imposed on when a special duty expressed or Im if with its consent expre S authority is con plied or a special In the O request its f latter erred case on it a at town is subject to the liabilities for the neglect of same duties to w IC private those special < would be If the vate corporations Imposed or the were same duties conferred on them authority same lIabIlIty for the their fOj including well as for the 1nwrongful neglect as wrongful theIr officers and wrongful act of agents doctrine IS correct and ti If this supported by abundant be to seems then although there IS ill authority giving he expressly statute e x P defendant CIty against the action agar sed of damages tau e for the neglect recovery of a corporate municipal the by pal duty yet tW lIabIlIty of a city invested with its corporate powers involving the rIght of raising rove in taXatIon and special assess menu nue by and the expendIture of the for general and also for e reTen special and local purposes is greater that of counties or towns which than are deemed to be auxilliaries of i the stats merely and when car porations are of the very lowest is grade and invested with the smallest smal-lest amount of power Barnes vs District of Columbia United States MO Asken vs Hall County 25 Mn Eept 730 Tjj Barnes vs District of Columbia Colum-bia it is said It is denied that a municipal corporation as distinguished distin-guished from a corporation organ lied for private gain is liable for the injury to an individual arising from negligence in the construction of a work authorized by it Some cases hold that the adoption of a plan of such a work is a judicial act and if injury arises from the mere execution of that plan no liability exists Child vs Boston 4 s Allen 41 Thayervs Boston 19 Pick 1 511 Other cases hold that for its negligent execution of a plan good in itself or for mere negligence in the care of its streets or other works a municipal corporation cannot can-not be charged City of Detroit vs Blackleg 21 Mich 84 is ofthe latter class where it was held that the city was not liable for an injury arising from its neglect to keep its sidewalks in repair The authorities establishing the contrary doctrine doc-trine that a city is responsible for its mere negligence ale so numerous and so well considered that the law must be deemed to be settled in accordance ac-cordance with them The motion for a nonsuit was based on the following fol-lowing grounds The plaintiff has sot shown by any evidence reduced re-duced that the city defendant had any possession or control of the water at the time of the alleged injury in-jury nor any testimony to show I that the defendant is in any way culpable or liable for his alleged loss The evidence produced by the plaintiff tended to show that the water which caused the damage to the plaintiffs tobacco came from a channel or ditch in one of the public streets of the city and that while in such ditch it was under the sole control of the defendant that the water in passing from the ditch in the street ran through a gate put in the side of the ditch by the city which was also under its control that after it left the public ditch in the street it was used to irrigate the land adjacent to and upon all of one side of it as is shown by the following fol-lowing diagram North Street Ditch Lot 5 Lot 6 I r Lot 4 = I o Lot 7 tL y Iq 1 a Lot 3 Lots j c 1 = c CD Ditch i i 1 c > Lot 1 > i 0 > > ri d I21 1i 0 I South The city watermaster certifies that the water flowing in the ditch in front of plaintiffs premises was allotted to the persons entitled to the same as follows P Richardson Mondays 315 p In to 1843 RVuber Tuesdays 4 a m to 10 a In Huntley Tuesdays 10 a m to 1105 a m Thomas Tuesdays 1103 a m to 60 pm Burkett Tuesdays 630 pm to 45 pm Johnson Tuesdays 745 pm top 9 to-p ill J Johnson Wednesdays 4 a m too to-o ao i pm J Horne Wednesdays 835 am tot to-t p Ill 1Filcott Wednesdays 425 a m to 6 20pm cManamon Thursdays 4 a IDa to 915 ID-a m Taylor Thursdays 915 am fro 955 pm Bourne Thursdays 445 to 555 P Hi j Levy Thursdays 5 i5 to 7 20 p m Taylor Thursdays 720 to S55 Smith Friday 4 a xa to 7 30 p m This witness also stated that IS issued to eack of the persons named a certificate for the use of the water at the times specified from the allot ments vv of water for the block inc in-c plaintiffs premises were sit uated It appears that the plaintiff Was entitled to it from 555 to 720 Phm on Thursdays that Taylor lose property adjoined and was below the plaintiff was entitled JJ the water from 720 to SoS tkat h01e and after 855the 5itha tims when T B ay ors right to the water ceased 3 t no one was entitled to its use until 4 p clock the next morning The eVIdence tends to show that during Shntf this time the water was not shut off at the head of the ditch leading from the ditch in the street to and passing plaintiffs premises but was permitted to flow all night and that this was the cause of the overflow into the plaintiffs cellar There was certainly negligence on the part of some one in allowing this water to flow all night from the street I am not of the opinion that the evidence shows this to have been the fault or neglect of the plaintiff The argument of the defendant I that upon the testimony it is in no way culpable or liable for the plain tiffs loss is based upon the testimony testi-mony of Harris and the ninth sec tion ef the ordinance read im evidence which is as follows Xo person shall be entitled to convey his portion of water from a main ditch to his lot or premises without first having constructed a substantial substan-tial gate both in the main ditch and at the head of his branch ditch the latter to be closed and j watertight except during the turn of such person to use his portion of the water When such branch ditch orosses any portion of a sidewalk the same shall be made of lumber or other substantial material the crossing of which shall be on the same level with such sidewalk Any person violating any of the provisions of this section shall be liable to a fine not exceeding 25 for each offense James Harris testified that he was employed by plaintiff to irrigate plaintiffs premises that he used the water July 1st for to o hours took it from Bourne who lives just east of Levy that irrigation by him did not flood the cellar on July 2d and never did that when he got through irrigation on July 1st 1880 he did not turn the water off at the head of the ditch but shut it off from Levys lot and left it to flow down the ditch outside just north of Levys lot Who then took and used the water he did not know neither does he know where it went to The main ditch mentioned in this section of the ordinance is in this case the ditch immediately in front of plaintiffs premises and the substantial gate there required both in the main ditch and at the head of his branch ditch is a gate immediately below the point where the plaintiffs branch ditch leads from the main ditch to his premises and a gate at the head of his branch ditch The testimony of Harris is quoted solely to explain the plan of irrigation adepted by the defendant and the relation of the plaintiff to the city by means of it It is not at all clear that it was the duty of the plaintiff at the time his right te the water ceased to close or shut the gate at the head of the main ditch leading from the ditch in the street near to the premises of plaintiff The ruling of the court below granting a nonsuit was error The case is reversed and remanded for new trial STEPHEN P TTTISS A j EMERSON A j Consurg HuKTE1t c j Dissents |
