Ephraim Milling & Elevator Co. v. City of Ephraim

Utah Supreme Court

Ephraim Milling & Elevator Co. v. City of Ephraim

161 P. 1124, 49 Utah 71, 1916 Utah LEXIS 109

CourtUtah Supreme Court

DecidedDecember 7, 1916

DocketNo. 2882

StatusPublished

Cited by1 cases

This text of 161 P. 1124 (Ephraim Milling & Elevator Co. v. City of Ephraim) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ephraim Milling & Elevator Co. v. City of Ephraim, 161 P. 1124, 49 Utah 71, 1916 Utah LEXIS 109 (Utah 1916).

Pincite

Opinion

STRAUP, C. J.

This action was brought to recover damages to plaintiff’s premise's and flour mill alleged to have been caused by the defendant. In the complaint it is alleged that the defendant “took and had” the exclusive control, management, and distribution of the waters of Cottonwood creek, a natural stream of water having its source in the mountains and coursing by plaintiff’s premises and through the town of Ephraim; that during portions of each year melting snows and storms caused “unusual quantities of water” to course in the stream, and sometimes to overflow its banks, and to carry down large quantities of timber, mud, rock, and debris; that the defendant “wilfully, carelessly, and negligently built and constructed, and caused to be built and constructed in the said natural channel of the said creek, strong abutments of timbers and stone, so built1 and constructed in the natural channel of the said creek as to obstruct the natural flow of the waters through the said natural channel,” and thereby prevented rock, timber, and earth from being carried down the stream, but to lodge and to obstruct the natural flow of the waters and to cause them to overflow the banks of the stream and upon the plaintiff’s premises, into its mill and upon and over its grain and flour and machinery therein, to plaintiff’s damage, etc. To- the complaint a general demurrer for want of facts, and a special demurrer for uncertainly, were interposed and overruled. The defendant answered denying the charged obstruction and negligence, and averred that, to prevent rock, and debris at high water from being carried into and through the town of Ephraim, the defendant constructed “a divider in the channel of said Cottonwood creek, and that [74]*74in constructing'the said divider the channel itself was not obstructed in any manner, but was left as wide and deep, free and clear, as it had always been;” and that “the object of constructing said divider in the channel of said creek was to divert and carry away from the natural channel of the said creek a portion of the waters whenever, by reason of unusual floods and cloudbursts, there should be more water than the said channel could carry;” and that the waters so diverted by it were carried upon lands owned by it, and the divider was so constructed as not to carry any waters, rock, gravel, sand, or debris, or other material, over the banks of the stream or upon plaintiff’s property.

1 The case was tried to a jury, which resulted in a verdict for the plaintiff in the sum of $500. The defendant appeals. The matters presented for review, putting them in the defendant’s language, are: “The overruling of the demurrer, the court’s refusal to grant a nonsuit and a new trial,” and “present the same general propositions of law,” want of facts to support plaintiff’s cause. Other than that, nothing is urged in support of the demurrer. No attempt is made to point out wherein the complaint is wanting in facts, and no reason occurs to us why it is so far wanting in such particular as not to support a judgment. That is all that need be said on that point.

2 The defendant’s argument chiefly goes to the point that the evidence is insufficient to support the allegations of the complaint. In such respect it is contended that it is not sufficiently made to appear that the defendant, by placing the abutments, or divider, in the channel of the creek, interfered with the natural flow of the stream, or caused its waters to overflow the banks of the stream and to run on plaintiff’s premises. Witnesses for the plaintiff testified that the defendant, in putting in the abutments, or divider, at that point, widened the channel and diverted a portion of the waters therefrom, which so reduced the force and rapidity of the flow of the waters that they would not carry gravel, rock, and debris farther down the stream, which, together with the abutments, timber, and stone put in, caused gravel, sand, rock, and other material to lodge, the bed of the [75]*75channel to be raised or filled, the waters dammed, the banks of the stream to overflow, and the waters to run upon plaintiff’s property, injuring its mill, flour, grain, and machinery therein. Several witnesses for the plaintiff testified to that. It was disputed by testimony of the defendant’s witnesses. “Whether the testimony of the one or the other was the more creditable or reliable was solely for the jury.

The judgment, therefore, is affirmed, -with costs.

FRICK and McCARTY, JJ., concur.

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STRAUP, C. J.

This action was brought to recover damages to plaintiff’s premise's and flour mill alleged to have been caused by the defendant. In the complaint it is alleged that the defendant “took and had” the exclusive control, management, and distribution of the waters of Cottonwood creek, a natural stream of water having its source in the mountains and coursing by plaintiff’s premises and through the town of Ephraim; that during portions of each year melting snows and storms caused “unusual quantities of water” to course in the stream, and sometimes to overflow its banks, and to carry down large quantities of timber, mud, rock, and debris; that the defendant “wilfully, carelessly, and negligently built and constructed, and caused to be built and constructed in the said natural channel of the said creek, strong abutments of timbers and stone, so built1 and constructed in the natural channel of the said creek as to obstruct the natural flow of the waters through the said natural channel,” and thereby prevented rock, timber, and earth from being carried down the stream, but to lodge and to obstruct the natural flow of the waters and to cause them to overflow the banks of the stream and upon the plaintiff’s premises, into its mill and upon and over its grain and flour and machinery therein, to plaintiff’s damage, etc. To- the complaint a general demurrer for want of facts, and a special demurrer for uncertainly, were interposed and overruled. The defendant answered denying the charged obstruction and negligence, and averred that, to prevent rock, and debris at high water from being carried into and through the town of Ephraim, the defendant constructed “a divider in the channel of said Cottonwood creek, and that [74]*74in constructing'the said divider the channel itself was not obstructed in any manner, but was left as wide and deep, free and clear, as it had always been;” and that “the object of constructing said divider in the channel of said creek was to divert and carry away from the natural channel of the said creek a portion of the waters whenever, by reason of unusual floods and cloudbursts, there should be more water than the said channel could carry;” and that the waters so diverted by it were carried upon lands owned by it, and the divider was so constructed as not to carry any waters, rock, gravel, sand, or debris, or other material, over the banks of the stream or upon plaintiff’s property.

1 The case was tried to a jury, which resulted in a verdict for the plaintiff in the sum of $500. The defendant appeals. The matters presented for review, putting them in the defendant’s language, are: “The overruling of the demurrer, the court’s refusal to grant a nonsuit and a new trial,” and “present the same general propositions of law,” want of facts to support plaintiff’s cause. Other than that, nothing is urged in support of the demurrer. No attempt is made to point out wherein the complaint is wanting in facts, and no reason occurs to us why it is so far wanting in such particular as not to support a judgment. That is all that need be said on that point.

2 The defendant’s argument chiefly goes to the point that the evidence is insufficient to support the allegations of the complaint. In such respect it is contended that it is not sufficiently made to appear that the defendant, by placing the abutments, or divider, in the channel of the creek, interfered with the natural flow of the stream, or caused its waters to overflow the banks of the stream and to run on plaintiff’s premises. Witnesses for the plaintiff testified that the defendant, in putting in the abutments, or divider, at that point, widened the channel and diverted a portion of the waters therefrom, which so reduced the force and rapidity of the flow of the waters that they would not carry gravel, rock, and debris farther down the stream, which, together with the abutments, timber, and stone put in, caused gravel, sand, rock, and other material to lodge, the bed of the [75]*75channel to be raised or filled, the waters dammed, the banks of the stream to overflow, and the waters to run upon plaintiff’s property, injuring its mill, flour, grain, and machinery therein. Several witnesses for the plaintiff testified to that. It was disputed by testimony of the defendant’s witnesses. “Whether the testimony of the one or the other was the more creditable or reliable was solely for the jury.

The judgment, therefore, is affirmed, -with costs.

FRICK and McCARTY, JJ., concur.

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Bluebook (online)

161 P. 1124, 49 Utah 71, 1916 Utah LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ephraim-milling-elevator-co-v-city-of-ephraim-utah-1916.

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