Solar Salt Co. v. Southern Pacific Transportation Co.

555 P.2d 286, 1976 Utah LEXIS 925

• Court: Utah Supreme Court
• Decided: September 10, 1976
• Docket: 14427
• Status: Published

Opinions

ELLETT, Justice:

The plaintiff has a lease from the State of Utah on land bordering the shore of the Great Salt Lake which it uses in connection with the extraction and production of salt from the waters of the lake. It also has a royalty agreement whereby it is obligated to pay ten cents to the State of Utah for each ton of salt shipped, used, sold or consumed by it. Furthermore, the lease includes a right to appropriate water' from the lake for the purpose of extracting the salt contained therein by means of solar evaporation.

There is no guarantee as to the amount of salt which is in, or will be in, the water diverted. Under normal conditions the percentage will vary according to the amount of water in the lake. This variance depends upon the amount of water which flows into the lake and to the amount of evaporation therefrom.

The plaintiff does not own the salt in the water until it has been transported to its leased land;¹ and it does not have an exclusive right to extract any salt from the lake.

The rights of salt companies operating under leases such as the one plaintiff has, were clearly set out in the case of Morton International, Inc. v. Southern Pacific Transportation Co2

The defendant railroad company constructed a causeway across the lake, leaving about one third of the surface of the lake separated from the two thirds from which this plaintiff obtains its water. As a result of the construction of the causeway, the water in the south two thirds of the lake is approximately 20 inches higher than that in the northern one third. The State of Utah required the defendant to construct two openings through the causeway, and since some 90 per cent of the water entering the lake does so from the south, the southern portion has less salt than does the northern portion. The plaintiff, therefore, has to evaporate more water in order to obtain the same amount of salt than it otherwise would have to do.

This action was filed seeking damages from the defendant for losses claimed to be sustained by reason of the construction and maintenance of the causeway.

The plaintiff here seeks to distinguish its case from that of the Morton case (supra, footnote 2) on the basis that this action is predicated upon a public nuisance. It claims that the north part of the lake is polluted by having that which it desires in the south part, to-wit: more salt. It claims that a small animalcule (brine shrimp) cannot survive and flourish in the northern part now and that certain algae will not live in the more briny part of the lake.

Plaintiff’s interest in brine shrimp is nil. Its interest is in salt and salt alone. The fact that some algae die and other algae thrive in different parts of the lake gives no cause for damages to the plaintiff who is nearly one hundred miles removed therefrom.

The fact of the matter is that the plaintiff has no protected legal right at all in and to the salt in the waters of the lake and, therefore, cannot recover under any theory for damages occasioned by reason of a diminution of the salt content of the lessor’s water.³

In the Morton International, Inc. v. Southern Pacific Transportation Co. case (supra, footnote 2), which is identical to the instant case, we said at page 259, 495 P.2d at page 33:

The State owning the salt and plaintiff having but a nonexclusive right to extract and process it, the basic question remains as to whether construction of the railroad’s causeway, which concededly diluted the water of its salt content in the so-called South Lake, created a com-pensable claim against the railroad in favor of plaintiff, concededly damaged in the sense that dilution of the water it diverts will cost more in the salt reduction process. We think there is no compen-sable claim here because plaintiff has no exclusive right against the State or others to the salt or the water from which it is converted, .

The appellant relies on part of Section 73-14 — 2(a), U.C.A.1953, (L.U.1953, Ch. 41 Sec. 2). It states:

“Pollution” means such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, ... as will create a nuisance or render such waters harmful or detrimental or injurious to . . . industrial . . . uses ....

In order for this statute to apply in this case it would be necessary for the defendant to alter the physical property of the water of the lake so as to create a nuisance or to render the water harmful, or detrimental, or injurious to the salt extracting processes used by the plaintiff. Nothing here is harmful, detrimental, or injurious to the extraction of salt. All that is done by lowering the salt content is to require the sun to evaporate more water in order to obtain a given amount of salt. The statute says nothing about it being a nuisance if salt is removed from water. If it meant that when the salt content of water was lowered a public nuisance would result, then it is obvious that the Solar Salt Company itself is guilty of a public nuisance, for it is also removing salt from the lake and thus leaving less salt for its competitors.

Professor Prosser states the following:

To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several.⁴

We are unable to see a public nuisance in this matter, and we think the case of Morton International, Inc. v. Southern Pacific Transportation (supra, footnote 2) is squarely in point and should be dispositive of the present appeal insofar as any diminution of salt in the water of the lake is concerned.

The judgment of the trial court is affirmed, with costs awarded to the respondent.

HENRIOD, C. J., concurs.

1 . 65-1-15, U.O.A.1953 as amended.

2 . 27 Utah 2d 256, 495 P.2d 31 (1972), cert. den. 409 U.S. 934.

3 .Hardy Salt Company v. Southern Pacific Transportation Co., 501 F.2d 1156 (10th Oir. 1974).

4 . Law of Torts, p. 606.