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

Appellant, Srnrnr,o co,,u.
0s. Ttn o me EouA "
Salt Lake City, O'"n A0ii1'ory'
Respondent.
The plaintiff in his complaint
alleges that the defends~*is mu-
nicipal corporation, organized by
and under an act of the Legislature
of Utah: That under and by virtue
of the power granted by defendants
charter, the defendant has taken the
entire control and possession of all
the flowing waters and the water
courses within its territorial limits ;
that on the lst day of July, 1880, the
defendant had exercised such con-
troll and possession, that by virtue
of it's ordinances it excluded all per
sons from any control over or inter
ference with the abundant waters
which were flowing in the city,
under penalties to. be sued for and
and collected for the benefit of said
city, and from all use of said waters,
except such as should be distributed
by said defendants agents and SER
wants, to persons paying therefor
that on said 1st day of July, 1880,
the defendant turned the waters
aforesaid then in it's control and
possession, and flowing in the vicin-
ity of the plaintiffs lot or premises,
into and upon the land adjacent to
the plaintiffs premises, upon which
was plaintiffs cellar, in which was
stored a stock of tobacco owned by
the plaintiff, and wrongfully per
mitted and caused the said waters
to run in great volume into and
upon the said adjacent land for a
long time, and there to accumulate
in a large body without the knOwl-
edge or consent of the plaintiff, and
there to soak into the ground and
discharge itself into said cellar, and
thereby filed said cellar with water,
and ruined said stock of tobacco,
without any fault or negligence Of
the plaintiff, to the damage of the
plaintiff, in the sum Of 5000.
The defendant in its answer,
denies that the tobacco mentioned
in the complaint was owned or
stored by the plaintiff as alleged;
admits that it is a municipal
corporation as charged, but
denies that by virtue of
it's charter right or power or
otherwise, it has taken the entire
or any control or possession Of all
or any of the waters or water
courses within said city WhatsO-
ever, or that it exercises such con-
troll. The defendant also makes a
specific denial OF the allegations
of the complaint, and alleges con-
tributary negligence on the part Of
the plaintiff. The answer also con-
tains the following sentence: ODE
fendant further says and admits
that by virtue Of its chartered
power, and as by its charter it was
and is required to do, it has assumed
to and does regulate and control the
distribution Of the waters flowing
into said city, throughout such pub
lie channelS,as it deems most advan-
tageOus to the Inhabitants OF said
city, and in such q manner only as
shall prevent the unnecessary waste
of such waters. That defendant
does not claim the ownership or pos
session of such waters, and never
has so claimed such waters. That
defendant does claim the right, and
the same is eDioined as a duty upon
defendant by its charter, to regulate
and con troll the distribution Of such
water flowing throughout the public
channels Or water courses IN said city
for the respective use and benefit Of
the inhabitants OF said city, who
are the owners of and entitled to
the use of such waters, and not
further or otherwise"
On the trial dt the conclusion Of
the plaintiffs case, the defendant
moved for nOn-Suit, which was by
the court granted.
A municipal corporation is created
by legislative act for the purpose of
enabling its inhabitants to manage
and control their local affairs; in
other words, that they may have the
right of LEGAL seif-government with
in the limits of, and in accordance
with the provisions of its charter,
which is its constitutiOn-the source
of all of its authority and pOWerS,-I
creating anu defining It's duties. Mr..
Dillon, in his work on municipal
section 80, says cit is
a general and undiSputed PROPOSE
ton of law that municipal corpOr-
alton possesses anu eau exercise the
following powers, and no others:
First, those granted in express
words second, those necessarily or
fairly implied in. or incidental to
the powers expressly granted; third, |
those essential to the declared OBJ
jects and purposes Of the corpora
ton, not simply convenient but in
Where power to act is
clearly given, the right Of the city to |
act byltS authorltlzed, officers or |
agents within One limits and scope
1f the granted power, cannst be
judiclalIy lnVorleIed with or ques-
toned, except in cases of imputed |
frauG, @ where within the province
committed to its charge there is a !
invasion of private rights. |
The pOWeI - ..oC necessarily carries
w..th it IT, right of determining the
manner of acting and of executing
the power; and if city, by its com
mon council or other authorized
in Undertaking to carry out
or execute a power granted by its
chartar commits q wr0uOful oct