The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-12-11

oy GiiiS Learned
and eminent jurist, is so uniYersaTS
adopted and so abundantly sustainay
by authority that a citation of cacou
would be useless.
The charter of the defendant ~.
powers it "to distribute. control e rl,
50 regulate the waters flowing inf o
the SHY throughout such channels
as may be most advantappoT,SS
and to prevent the unnecesssTrSS
waste of water" And for the mn
pose of carrying out and execufinc
TINS power, italso grants to the cts
power BY ordinance to annually lew
ana collect taxes on the assessed
value OF all real and personal estate
OF property in the city made taxabis
oy the laws Of the territory, not Ia
exceed one and one quarter mills IN
the dollar, to control the waters of
said city" From the ordinance read
in evidence it cannot be pretendsJ
that the city had not accepted theso
PROVISIONS, and was not at the time
OF the alleged injury to plaintiffs
property acting upon and under
them; and IN it's answer it elaine
the right, and the same is enioinaJ
as a duty upon defendant bv it,
charter, to regulate and control tho
distribution of the waters flOwinc
throughout the public channels %
water courses in the city for the ra.
spective use and benefit of its inbaS-
itants, who are the owners of and
entitled to the use of such waters
but not further or otherwise hut
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-
PENDANT does not claim to own the
waters, is of no Importance in the
consideration of a claim for damag-
es for d 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 bridge over the stream
in an improper and unskillful man.
ner, or # having built it in all re-
spect In a proper and skillful 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 can
not escape the just responsibility for
its negligence. Perry ct al. rs.
Worcester. By the testimony pro-
duced on trial it appeared that
the defendant, as part of its
general plan of irrigation had
constructed a water ditch near
to one side Of one of its streets;
from this, which unquesUiOn-
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 sole. and exclusive con-
troll; 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, fumes and bitches 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 WatermaSter, and
assigns to him the duty of 'seeing
to the proper location, CONSTRUCTION
and repair of all gates, dams, fumes
bitches and reservoirs, that water
may not be wasted, streets or
sidewalks overlooked, or o.
stTucted, 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 carry
ing out the same, when so far
executed that nothing remains to
be done except to manage and con-
troll the waters in the channels or
bitches 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 ac-
cOrd2nce with the city ordinances
or the regulation of the WatermaS-
ter made in compliance Herewith,
is certainly not judicial but minis
terial, and the performance Of this
duty is accom- panied with OblIga-
lions 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 neglect to perform this du1y
with reasonable care and prudence
in damages to such per
son entities him to an action for the
damages sustained by him. Dillon
on Municipal Corporations, Sections
066, $50; Mortified Us. Worcester, llg
Mass, PIC; Lloyd Us. Mayor o.
New York, 5 n. Y. 1863; Burton o.
City of Syracuse, 80 \. Y, a;
Weed Us. Village Of BalstOn Spa:
rs n. Y. 329; Hines Is. City OF
LockpOrt, so, n. 7. 236, 25S;
Weightman cS. The Corporation OF
Washington, Black, 80.
The distinction between the Ia
bility Of a municipal cOrp0raIlGI
made by the acceptance OF its CITY
oLo-&ar ond rho Involuntary 0fLGSk /