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Show PAGE SEVEN THE DAILY RECORD Supreme Court Decition from the facts given in evidence. It would therefore seem that the question of whether or not the defendant should have foreseen a rainstorm of the proportions of the one which came and made temporary provision by screens or otherwise to prevent the washing of gravel into the drains would be a question to be determined by the jury (unless the defendant ia to be held an imburer to prevent water from flowing onto plaintiff's land). The law seems to be contrary to the way the trial judge presented it to the jury. If there was a defective condition, one from which harm might reasonably have been anticipated, then an instruction on negligent and on vis major should have been given. to-w- it: The following cases are in point: City of Valparaiso v. Spaeth, 76 N. E. 514 (Ind. 1905). There, plaintiff sued for damages occasioned by flooding. The defendant city set forth the defense of an unprecedented rain- storm. The trial court sustained a demurrer to that defense, and the late court reversed, saying: FRIDAY. SEPTEMBER New Corporations - 54607 50 UTAH KIDNEY FOUNDATION Med N SLC. Dr, Tr; Franc is-- 13th E, 350 N, Am S 6470 E 3:47 S UTAH PROFESSIONAL 42 S Russell Dr Temple, SLC; 9th E, Dalnes, 150 2000 C S Hntr. W S 5th E, M 54591 - EQUIMATICS Main St, SLC. Dir: INC, 143 - 508 Nelson, etc. 2nd N'Lgn, ALPINHAUS INC, 974 same. Kierman, - S, BEACH 427 CORP, E 3 S, SLC. Dir; John Tolich, 3rd Ave, SLC; Linden Bailey, Bntfl. Dir; John Czlnger, 3142 Kampton Dr, Los Alamltos, Cal; Wm Bain, 427 W 500 S, Bntfl; John Czlnger Jr, - 54577 - Paul Leroy Cracroft, 30 Shelley Ave, SLC; Blasting Hlpr, Kenn; Llab $12192.87; Assets $1720.51; Exempt $1684. 868 AARON, Prof 500 W, Provo. JOSEPH N Corp, 1029 N Pres Joseph N Aaron, 2803 N 7th E, Provo; VP Rbt W Petty 930 N 5th W, Provo; Sec C Dean Larsen, 610 E S Temple, SLC; Tr Marjorie A Aaron, 2803 N 7th E, Provo. extraordinary character - Karl 869 175 E SLCo - RAINBOW SEVEN INC, 270 9th S, SLC. Dir; Fred Kuhn words: 3901 Jr, Jr, Spencer Eslle S 870 2520 W, SLC; Sid K 1355 Laird Ave, SLC 0 Barlow, 4444 S Roy SLC; Highland Dr, SLC. ... It is found upon sufficient evidence that the overflow was caused by a stoppage of the sewer with sand, dirt and refuse matter washed in from the street, and that at or just before the flooding of the plaintiff's premises, there was an unusually heavy shower of rain. There is no proof of any obstruction before that time. There being no fault in the construction of the sewer, causing the overflow, it was incumbent upon the plaintiff to show a neglect by the the obstruction after notice of its defendants existence, or some omission of duty on the part of the city officers in looking after it and seeing that no obstruction 54579 - RIVER DELL INV CO INC, 4290 S 800 W, Ogd. Pres Miland R Farr, 4813 S 1750 U, Ogd; Wayne N Farr, 4811 S 1750 W,0gd; Sec Norman R Farr, 4290 S 800 W, Ogd; Tr Lowell G Farr, 4290 S 800 W, Ogd. mn 54580 -- RECREATIONAL & UTILITY 5TH WHEEL TRLRS INC, 240 Crusader Dr, SLC. Dir: Charles E C App. 662 (1897), was one wherein the city was sued for injuries caused by the collapse of a building due to weakening of its foundation by reason of flooding occasioned by failure of the city to provide for carrying off surface waters. The Court of Appeals stated the law in the following language: The rule is that the outlet must be of ample capacity to carry off all the water likely to be in it. But the rule is not applicable to an extraordinary and excessive rainfall, which is held to be vis major. Such infrequent and extraordinary occurrences cannot be foreseen and provided against, and for damages caused by them Citations omitted. no one is responsible. . . . To the same effect is the case of Allen, et al. , v. City of Chippewa 9 N. W. 284 (Wis. 1881). Headnote 1 of that case reads: - WASATCH CHEMICAL CO, 1st S, SLC. Dir; M M Fidlar, 180 E 1st S, SLC; B Falls, same; John Craw- Prof H0NNAHAN, Corp, 2988 N 175 E, Provo. Pres Jms R Monnahan, 1275 N Univ St, Provo; 400 Thomas VP M 21 Hall, Payson; Sec C Ddan E S Temple, SLC; 610 Larsen, Tr Ralph Olsen, 290 W Ctr, Pro N Where a city, under the superintendence of a competent engineer, builds a culvert sufficient to discharge the ordinary quantity of surface water flowing through a definite channel, it is not liable when, because of a flood caused by an unusually heavy rain, the culvert is unable to discharge the water, and lands are overflowed. The instant matter is not a case of nuisance, nor is it one of diversion of surfice waters. It is merely a case of flooding of plaintiff's land due to the stoppage of a drain which was neither negligently constructed noT of precipitation which inadequate for carrying off of the foreseeable amount the road and parking in was that constructing would fall. The only trouble of the laying gravel and the lot there had to be an interval of time between of time a placing of the paving material on top of it; and during this interval this of which the fell, damage causing rainfall of unprecedented proportions plaintiff complains. as follows: . . . W, 54585 - EMPIRE 68 S Main SLC. Dir; Hugh A SLC; Major - STINE ENTERPRISES N Temple, SLC. INC, Dir: WeWay, sley Sine, 451 Northmont SLC; Michael Stewart, 82 E Southgate Ave, SLC; Barry W Sine, 150 N Main, SLC. 54587 - FUN FABRICS INC, 429 500 S, Bntfl. Dir: Wilford I Hermansen, 5108 S 1950 W, SLC; Chona Lee Hermansen, 5108 S 19 50 W, SLC; Mark E Clovard, 3938 S Orchard Dr, Bntfl; Viva M Cloward, same; R F Shingle ton, 2385 Stringham Ave, SLC;Maurine H Shingleton, same. 54588 - SHlPE ANIMAL CTR INC, 1031 Beck St, SLC. Pres Merrill G Shupe, 570 E 400 S, Cntrvl; VP Verle L Shupe, 280 Alberta - Sec-- E Donna Bowd Tr 400 S, BERCSTROM St, SLC. 2916 Cntrvl. Shop; Llab $15626.66; Assets $822.;Exempt $335. Mach - 872 Sam Wm Callas, 2125 N Rd, SLC; Truck Drvr, Cowboy Oil Co; Llab $5265.99; Assets $150.; Exempt $100. Rdwd FURNITURE Pres Harry 875 - Benedict A Kirsllng, 5442 Avalon Dr, Mur; Slsmn, Unempl; Llab $49075.; Assets $599.; Exempt $570. - James Melton Dudley, 3rd N, SLC; Custodian, SL Brd of Ed; Llab $4521.54; Assets $190.; Exempt $35. 876 241 W 877 - Evelyn Ruth Nickerson, 1827 Hllcrst Ave, SLC; Waitress The Cardinal; Llab $11164.80; Assets $14568.43; Exempt $95. 878 - Donald Decker Laycock, 1217 E 5th S, SLC; TV Tech, Self; Llab $10579.39; Assets $670.50; Exempt $288.50 879 - Paul T Martin, 1231 W 2055 S,W Jrdn; Wldr, Kenn; Llab $4904.99; Assets $552.; Exempt $100. - John Cruz, 754 880 SLC; Hvy Eq Op, W S Temple Kenn; Llab $89871.66; Assets $10151.; Exempt $10150. - 881 Wm Markea, Works; Frank Webb, 1050 Laborer, Ut Saw Llab $3653.67; Assets SLC; 882 - Larry 3842 S 6580 CO N Lovell Harris, W, Hntr; Laborer, SLC Str Dept; Llab $20879.16; Assets $99.; Exempt $54. 883 - Baker, Burrows 884 275 N & Assoc. - Donald Robert North, 1st E, Tooele; Lift Op, Tooele Army Dep; Llab $4582.18 Assets $1877.16; Exempt $189.20 - Samuel Thomas Chappel, 6th E, Heber City; Mech, Ritchies Chev; Liab $7367.53; 885 17 N Assets $3520.; Exempt $3500. 886 502 Orchard Dr, SLC Bergstrom VP Steven C Bergstrom, same; Sec-Lela R Bergstrom same; Dir Richard H Potts, 570 E 6340 S, SLC. Tr Box 68, Oak- ley, Ida; Laborer, Mitchell $32,50; Exempt $50. W 54589 701 S MM INC, W Snyder, St, SLC; Macbeth, Shanna, Fred L Johnson 160 E Cyn Rd, Sp Fk. Dr, N Ogd; Shupe, 570 .... HOLDING CO 78 H 4215 54586 640 W Earner Plan - James Wage $97. 54582 - SHORT STOP CORP, 1550 7800 S, W Jrdn. Dir; Michael Adondakis, 1550 W 7800 S, W Jrdn; Irene Adondakis, 8585 S 2200 W, W Jrdn; Rosemary Adondakis, 1550 W 7800 S, W JR - 871 Douglas McDouall, - Walter L Hunt, 688 S Brig City; TV Rprmn app, H & H TV Co; Llab $18737. 13; Assets $4576.; Exempt W -- Elec 3rd E, same. Jr, 54584 Los Angeles Cemetery Assn. v. City of Los Angeles, 37 P. 375" (Cal. 1894); was similar to the instant matter. Headnote 2 of that case states the law to be : Where one person . . . builds roads, . . . upon it, his land he usually interferes with the flow of surface waters upon or across it, and such interference often causes harm to a neighbor in the use and enjoyment of his land. That harm may arise from the backing up of water on the neighbor's land or from an increase in the flow thereon or from a change in its direction or velocity. Where the1 It may be intentional or unintentional invasion is not intentional, the liability of the person harmfully interfering with the flow of surface waters Kastler Jr, ford Interst 874 54583 - ASSOC INV DEV, 649 S 500 E, St Geo. Dir; Wendell W Xotter, 649 S 500 E, Si Geo; Howard Carte, 163 N 300 W, St Geo; Phillip L Foremaster, 725 S Rvr Rd, St Geo. city, in grading its streets and constructing gutters thereon for carrying off surface water, is not bound to provide against extraordinary storms such as private persons of ordinary prudence do not usually anticipate and provide against. of-Tort- Z Hvy Eq Op, Llab $22060.98; Assets $3544.48; Exempt $2974.48 Co; Llab $3691.25; Assets $345.; Exempt $724. Jrdn. A The law is stated in Sec. 833, Restatement of the Law Grnfld Ave, 54581 180 E 111. - Wage Earner Plan - George Burge, 3636 Wendell Dr, W SLC. . . . The case of City of Peoria v. Adams, 72 1387 Gillespie, Jentzsch, 873 - Robert Candelaria, 4250 5615 S,Krns; Utlity Mn, Kenn; Saxton, 240 Crusader Dr, SLC; Gladys S Saxton, same; Gladys occurred. . . . The city does not insure the citizen against damage from works of its construction, but is only liable, as other proprietors, for negligence or willful misconduct. E Norman 3160 S, SLC; Custodian, & Wilford Bldg Mainten- ance; Llab $6492.22; Assets $459.66; Exempt $176. 54578 In Smith v. City of N. Y. , 66 N. Y. 295 (1876), the plaintiff's land was flooded when the sewer overflowed following an unusually heavy shower. The judgment was for the defendant, and the appellate court affirmed in these 7011; Bankruptcies Wyo; Pauline Bailey, same. guard against them. Skillful construction of streets in this respect seems to mean that such side ditches, culverts, and outlets must be provided for surface water collected and diverted from natural ways as are sufficient to carry the waters that may, from experience and the previous history' of the vicinity, be reasonably expected to fall, and which are not the result of a cloudburst or other rainstorm of 500 W 30th St, Los Angelos, Cal; B G Holland, 6430 El Jardln, Long Beach, Cal. 627 Frontlerland, Jackson, S N Caldwell, 60 Wall St, NY, NY; David H Jackman, same; Garvin 54592 SLC. . . . 54576 Rd, Charles W What has been said above with respect to the duty of municipalities to provide means of escape for surface water in the improvement of its streets does not apply to unprecedented rainfalls; that is, to such downpours or floods as may be known to have occurred, but are so unusual and extraordinary as that prudent persons do not think of attempting to M RE- Dr Alan R Nelson SLC; Dr Merrill E STONE LTD, Dir: Kent SLC. P - VIEW ORG, Inc; 3437 BROWN SLC. 3737 Honeycut Nielson, E Kent Evans, 840 Fk; Michael Daniels SLC; THE 1st S, Jensen, 1804 Mlllbrook Rd, SLC Lucille N Jensen, same; Gerald land Hills Rd, SLC; Edward M Barton 2687 Wllngtn St, SLC; Nell Sabin, 610 E S Temple, SLC; Miriam Wadsworth, - 54590 22 E ka Meacham, 4009 Ralph St , SLC Ceanne Mitchell, 2894 E High- 54608 appel- 17, 1971 - Louise 1st W, N Maude Thomas, SLC; Maid, Holy Cross Hos; Llab $15131.57; Assets $2003. Exempt $1953. 887 - Sterling R Giles, RFD 626, Heber City; Mnr, Hecla Mining Co; Llab $20711.65 Assets $8929.39; Exempt $519.39 Box t t- - i 4 |