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Show rfj. I .. FRIDAY. AUGUSTS, i V 1 . i to M, fcancone etux Gam G, Christensen Const $6176.00 to 2546 309 Maurince C. W interton to Melvin A. Cook $5000,00 110 William D. Newton etux to The Federal Land Bank of Berkeley $45900.00 161 Credit Leroy Leo E. McCullough etux to Prud Fed Savings $7178.40 Vineyard Glen 2 $2750.00 060 Bartley M, K. Curtis etux to Bartley Larry H. Olsen etux to American Equity $17250.00 620 Prestige Builders to Roscoe Mackay etux $51000.00 K. 637 Ronald S. Bergman Curtis etux Samuel D. Goudy Sr etux to Utelcu Credit $14000.00 Thomas G. Vayman etux McGhle Land Title, IT to Bartley K. Michael L. Lan etux to Valley Bank and Tr 658 $1254.00 Wesley J. Patterson etux 680 to First Curtis etux J. 711 31 8 to Credit Industrial Fidelity 821 Harold H. Jenson etux to William T. Logan Jr etux $19000.00 832 Vernon A. Glenn etux to Utah CV Fad Cr $4000.00 841 John Ayery Hill etux to American Equity $26650.00 938 Chad D. Fed Savings $2703.00 Moon to 323 Michael J. Adams etux American Sav and Loan $1402.56 to 324 Ardean V, Watts etux to American Sav and Loan $7411.20 L. George Veasy etux to American Sav and Loan . $7926.00 etux to George T. Matte na 94? to Dial Industrial Prud Jr etux Finance Mrs. Johanna Jones to Dial Ind Finance $3096.00 New Business Telephones SALT LAKE AREA A public service feature of THE DAILY RECORD in cooperation with Mountain Bell. . George Tanner and Helen Tanner, Counsel his wife: and Ida Hamblin, a woman, Defendants and Respondents. E. J. 17, 1973 Skeen L. M. Cummings, Clerk Justice; use-lea- a, -- Provo Reservoir Co. v. Provo, Case 2888 Civil, 4th Judicial District Court, in and for Utah County, State of Utah (1921). on the basis ol would treat this waste water as being To sanction any other result under the and water cases preceding this one, would be something akin to saying that one living on a freeway would have a vested right to have people throw beer cans on his property in perpetuity so that he could sell them for recycling purposes. .As to 3): Defendants' claim obviously is not structured on a taking of land for a public purpose. It appears to be a tort claim for interfering with some drains dr interfering otherwise in a diminution in the flow of waste water. Again I refer to Mr. Justice Ellett's concurrence. The State in this suit did not ask to take any water or water rights for a public purpose at all. The best defendants can urge here, besides such interference, would be on the basis of severance damages. Both parties seemed to have recognized that this theory was not tenable since the matter of damages for the actual taking and for severance damages were resolved and no one is contesting those matters, - the parties in apparent agreement recognizing the difference with respect to the waste water by stipulating that this question could be resolved not by the jury as the other issues were, but by the court in a separate trial. After 1903 no one could acquire rights to water, surface or underground, by claiming its capture in drains or otherwise, without making application to the State for its appropriation, -- - which is not the case here. Particularly is this true when, as here, the drains were installed, not to use the water beneficially on the land, but to get rid of it so the land could be used beneficially, -- - ultimately to sell it, as trash, so to speak, to aomeone else who could use it one way or another. The sale of this water well may have been accomplished for a purpose that did not even resemble a beneficial use thereof. The claim for compensation for this waste water being one sounding ex maleflcio, and not on appropriation for beneficial use upon the claimant's land, defendants, if they had any claim at all, should have pursued an action under the Utah act having to do with waiver of immunity, which was not done, and which should resolve this case into a remand with instructions to vacate the judgment relating to this waste water. In this respect, I refer again to Mr. Justice Ellett's concurrence. 1. con-sequentia- -- 325 . July ble $8100.00 948 Lloyd J, Houston etux American Sav and Loan $4295.04 322 No. 12688 Provo ty. Clane B. Hale etux to American Sav and Loan $6749.76 321 M, Kenneth White etux $1500.00 L. George Veasy etux to American Sav and Loan $7926.00 etux to Universal Builders to Joseph V. Linton etux to Leland Spencer etux Leonard Bauer etux to American Savings and Loan $4041,00 V. Cranney $26000.00 1 320 Bank Utelcu Credit Union Kenneth White etux to $1400.00 $8940.00 260 St Sec $3758.40 Ronald D. Miller etux 217 Loan $6286.08 M, 211 etux to American Sav and $1500.00 205 etux to 604 Kenneth White etux to $1425.00 200 Woodrew Kay Larry M. 131 Bank Ross E, Banhoerum etux to American Equity $20900.00 .1425.00 064 St Seo 600 Kenneth White etux 3. Appeal from an award by jury verdict for drainage water alleged to have been taken in a condemnation action by the State where defendants were awarded $75,000 for taking and severance damages, excluding the instant claim, incident to a highway project, where the drainage phase was separated by stipulation, for future adjudication. The later award by the court, sitting without a jury, of $38,800 for such drainage .on account of waters interfered with, is attacked on this appeal, and we revefse the trial court's decision in this respect. No costs to anyone. Defendants and their predecessors installed drains in the subject property to get rid of water which was soaking the land, which drainage installation, at their own expense, was designed to rid the land of undesirable water in order to make the Tanner tract productive rather than - and not to put the water to a beneficial use in the appurtenant land. The tanner interests were awarded some kind of rather indefinable rights in this unwanted and troublesome water in the also troublesome decree1 so that the Tanner interests actually aold the water for a use by somebody else, at a point of diversion about five miles upstream. Without plagiarizing Mr. Justice Ellett's concurring opinion with respect to entitlement and ownership of water in this State, to which reference ia made and with which, so far as pertinent, we concur, suffice to say that the fact that the Tanner interests claimed and sold waste water doesn't prove much, and especially with respect to ownership, as pointed out by Mr. Justice Ellett, -- - the decree to the contrary notwithstanding, which we think not apropoa here. We think the damages awarded for loss of water collected in these drains are not compensable, because: 1) They are based on speculation; 2) are consequential, and 3) are subject to the defense of sovereign immunity. As to 1): The drains were installed by defendants to rid themselves of the water in order to preserve the value of their land, and not to collect for sale to others. Utah should not have to subsidize such sale, or the loss of it. In this respect it is significant to note that defendants do not claim this waste water by virtue of a filing with and by order of the state for its appropriation. The record reveals that, except for a decreeengineer recognizing the drains and the waste water therein and permitting its diversion about five miles upstream, auch application to the State was not in existence, and it appears also that the subdividing of property upstream, making it residential instead of agricultural, would diminish the seepage flow that appears to have been feeding the drains rather than from a flow of established aquifers. Because of this uncertain circumstance, the damages in this case become speculative, which are not asiessable by a jury or other arbiter of the facta. As-t2): Except for some doubtful impact of State v. Rohan, 26 Utah 2d 202, 487 P. 2d 857 (1971) on the previously established concept of immunity from payment for consequential damages, precedent in this State certainly American Equity $21750.00 to 100 Stevens etux to Davis County Bank Eddie Havin Boone etux to American Equity $22250.00 602 Rural and Recreational . g- -v HE NR IQ D. 419 2548 023 ' $2210.76 Teachers Credit h,ou,h u ho:; $5940.00 to First Union $4800.00 982 Poulsen etux to C, Martin VanderVeur etux Russell Alaond etux to Lake In The Supreme Court Of The State Of Utah FILED $30000.00 Mortgages Salt PAGE THREE Plaintiff and Appellant, R. Lament 375 391 973 RECORD DAILY Union $10000.00 Forrest Lee Hellevall etux to Prud FBd Sav $1710.00 2547 S4 tftoii SLC Rrud Jbd Sav $5431,20 357 American Sav and Loan $1500.00 lU v 2548 356 Universal Builders to 613 to John T, Orton ford Hansen etux to Security Title, Tr . V1 Mortgages Gerald H 11 " THK 648 A. Eugene Petersen etux Robert P. Kline $500,00 579 - iWtfc'p 1973 Second Mortgages 891 ' J A-- AGENCIES L (tax INC. 3350 South 900 East Lake City 84106 services) Salt -4- 84-7659 FAY NURSING HOME CASE (nursing 294 home) East Robert Avenue Salt Lake City 84115 - 467-52- 25 Warranty Deeds Wendell Kay Memmott etux to Paul D. Walhoa etux 991 996 B. Johanna Hines Smith 2547 000 Gilmer S, A. to Katherine 001 A, into his land nor after they depart therefrom. Hilton etux to Willis Beckstead etux a Willis Beckstead etux to Mils Ctrrin Yergensen etux Nils Orrln Yergensen etux 002 to Carmen L. Qrr 012 Coon, King snd Knowlton R, Hnrri3 etux to Steven Porters Brothers Realty to Smith Parker etux 015 CALLISTER. Chief Justice; (Concurring) This case appears to be analogous to Weber Basin Water Conservancy District v. Galley1 wherein this court held that a landowner has suffered no compensable damages where the construction of a public improvement lowers the water table and thus removes moisture from the land. The court reiterated the principle, which is herein controlling, that the owner of the land does not have any right to the waters percolating through the soil before they come 2 Utah 2d 55, 328 P.2d 175 (1958). 2. See Bullock v. Hanks, 22 Utah 2d 308, 312, 452 P.2d 866 (1969). 1. 8 ELLETT. Justice; (Concurring) I concur but would like to add the following The appellant, hereafter called Commission, brought an action under the eminent domain statute to condemn a parcel of land belonging to the respondents, The value of the land taken and severance damage', i.e, , the damage caused to the land not taken because of the construction, were fixed by a jury at $75, 000. No complaint is made by either party as to this sum. This should have been the end of the matter in connection with the eminent domain statute. 1 The defendants had drain ditches in their lands to lower the water table, and the water thus collected in the drain ditches was personal property and was - |