This case came to the writer on reassignment.
Plaintiffs recovered a judgment against defendant for the use of water owned by plaintiffs, but taken and withheld from them by defendant. From this judgment defendant appeals, assigning 25 asserted errors as grounds for reversal. The assignments however present only two questions for consideration of this court.
1. Does plaintiffs' complaint state a cause of action?
2. If plaintiffs are entitled to recover what is the proper measure of damage?
A proper consideration of these questions impels an understanding of the background out of which this suit arose. Many years before this action was commenced, plaintiffs became the owners of certain water rights in Big Cottonwood Creek which along with water rights of other parties were diverted from the natural channel through the Big Cottonwood Tanner Ditch. In all there were 1795 units or shares. In due course, the Big Cottonwood Tanner Ditch Company, a water corporation, (hereafter called the corporation) was organized among such water users and most of the water transferred to such corporation. Some of the users did not so transfer all their rights. Plaintiffs transferred 23 shares taking stock in the corporation therefor, and retained and refused to transfer to the corporation 22 3/4 shares or units of their water right. The water right thus retained had been, and continued to be, diverted through the Tanner Ditch.
In 1920, defendant (hereinafter called the City) entered into an exchange agreement with the corporation whereby the City obtained the right to divert from Cottonwood *Page 205 Creek into its watermains all of said waters to which the corporation was entitled, except 2.591 second feet during the six summer months of the year, and 1.436 second feet during the winter months, which water the city was to deliver to the stockholders of the company through suitable watermains to be installed by the City. The city also undertook to provide the company with irrigation water by delivering into the Big Cottonwood Tanner Ditch, near its point of diversion from Cottonwood Creek, certain specified quantities of non-potable water from Utah Lake, brought to the point of delivery by means of canals and pumps. Since Moyle and others had in the Big Cottonwood Tanner Ditch, potable waters from Big Cottonwood Creek which were not involved in the exchange agreement, friction developed, among other things, over the pollution of this water by the admixture of the Utah Lake water. As a result thereof, on June 28, 1926, the City commenced in the District Court of Salt Lake County a proceeding against the Moyles to condemn said water rights of the Moyles in the Big Cottonwood Tanner Ditch, and take such water for the benefit of the city and its inhabitants, and in lieu thereof to furnish Moyles with other waters suitable for irrigation, and on July 23, 1926, obtained from the court an order authorizing it to take immediate possession of such waters.
To this complaint, Moyles filed a demurrer and a motion to strike, and no further proceedings in court were had in said cause until October 1937, when Moyles called up for disposition the demurrer and motion. The demurrer was sustained by the court, the City refused to amend and on January 7, 1938, caused the case to be dismissed, without notice to Moyles. In April 1939, Moyles presented to the City a claim for $4,150 for the use and possession of such waters from the date of the aforesaid order of possession to the date of claim. When the City refused payment, this action was commenced. Moyles recovered judgment for the amount and the City appeals, presenting the questions posed at the beginning of this opinion. *Page 206
1. The question as to whether the complaint states a cause of action revolves upon a number of factors which we note in order. (a) Where a condemnor by court order obtains possession of the property sought to be condemned, and then surrenders the property and dismisses the action before the assessment of damages, may the condemnee maintain a suit for value of the use and possession during the occupancy? We are not concerned at this time with questions as to the right of the property owner to recover expenses incurred in protecting his property rights, and in defending against condemnation proceedings which have subsequently been abandoned. Nor do we have involved here questions of losses due to depreciation in market value during pendency of the proceedings, nor profits in sales lost because of the proceedings to condemn, nor of damages actually done to the freehold. We are here confined to the narrow question of right to recover for the loss of the use and occupation because of the condemnor having possession of the property while the suit was pending. The City argues extensively, and cites authorities that a municipality is not liable for damages upon abandonment of condemnation proceedings. That is all beside the point. The authorities relied upon do not involve cases where the City took actual possession of the property pendente lite.
The right of eminent domain is an arbitrary power, and so the constitution has limited, confined and guarded the exercise of the right. It provides that private property shall not be taken or damaged except for purposes of public utility and for adequate compensation. This prerogative is only 1, 2 allowed where the letter of the law, permits it and then only under careful observance of the rules prescribed for the protection of the owner. Owen v. City of Springfield,83 Mo. App. 557; Cooley Const. Lim. 651. The majority of the decisions hold that a rule that a municipality is not liable for damages sustained by the property owner resulting from the institutions of the condemnation proceeding which are subsequently abandoned does not apply in instances of actual damage to the freehold, *Page 207 or where the condemnor takes possession of the property. See Ann. 31 A.L.R. 364, 18 Am. Jur. p. 1041. And many of the cases hold the City liable for all damages resulting to the property owner from the institution of the suit. Such cases are unimportant here since this action rests upon the theory that possession was taken and no damages are claimed except for the use and possession of the property. Such an action will lie. Salt Lake Investment Co. v. Oregon Short Line R. Co., 46 Utah 203, 148 P. 439, affirmed246 U.S. 446, 38 S. Ct. 348, 62 L. Ed. 823. See Anno. 121 A.L.R. 88. See also Hullin v. Second Municipality of New Orleans, 11 Rob. La., 97, 43 Am. Dec. 202; Feiten v. City of Milwaukee,47 Wis. 494, 2 N.W. 1148; Graff v. Mayor, etc., of Baltimore,10 Md. 544; United States v. Great Falls Mfg. Co.,112 U.S. 645, 5 S. Ct. 306, 28 L. Ed. 864; United States v. Lynah,188 U.S. 445, 23 S. Ct. 349, 47 L. Ed. 539; Jacobs v. City ofSeattle, 100 Wash. 524, 171 P. 662, L.R.A. 1918E, 131; Kincaid v. City of Seattle, 74 Wash. 617, 134 P. 506, 135 P. 820. Such damages need not be recovered in the condemnation proceeding, but may be sought by an independent action or proceeding. This is on the ground that any damages on account of such proceedings is not a damage to the property itself, but is of a personal character.Utah Copper v. Montana-Bingham Con. Min. Co., 69 Utah 423,255 P. 672. State ex rel. City of St. Louis v. Beck,333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373, followed by annotation, 18 Am.Jur. 1016.
(b) Have Moyles pleaded facts to bring them within the rule? In the complaint, it is alleged that Moyles were the owners of certain water rights, that the City commenced an action in the district court against Moyles, and in such action procured an order from the court granting the City 3 immediate possession of Moyles' water; and that the City took such possession, and continuously maintained possession thereof until the commencement of this action; that the City dismissed the action against Moyles wherein it had secured the order for and possession of the water, but continued to keep possession *Page 208 of, and to use the water; that the reasonable value of the use and possession of the water during the period it was so held by the city was $4,150 to plaintiffs' damage in that sum; that the claims had been presented to the City, but was rejected and payment refused. These facts are sufficient to bring the case within the rule announced in section (a), supra.
(c) The City contends that the complaint is deficient because it does not allege that Moyles would have put the water to a beneficial use had the City not taken it. No such allegation is necessary to state a cause of action. The demurrer admits that Moyles owned the water right and were 4 deprived of the use thereof by the action of the City. If Moyles could not have put the water to a beneficial use, that may be a defense, or a mitigation of damage, but it is not a matter that must be specifically pleaded to state a cause of action. This is not an action to try title to a water right, which right is admitted by the demurrer, but to recover damage for being deprived of the use thereof.
(d) The City contends that the complaint should and does not allege that the waters were taken into possession of the City, and also that there is no allegation of damage. There is no merit in either contention. The complaint alleges that Moyles were the owners and entitled to the use and possession 5, 6 of the water, and were deprived thereof by the City. The demurrer admits these facts. The complaint sets forth that Moyles were damaged in the sum of $4,150, the reasonable value of the use of the water for the many years involved in the action. That is sufficient against the demurrer filed. The complaint stated a cause of action.
2. This brings us to the question of damage.
The City maintains there is no evidence that it ever took possession of the water under the court order or otherwise; that the evidence shows that during the larger portion of each year the waters involved in this action were not diverted from the Big Cottonwood Tanner Ditch; that there *Page 209 is no evidence that Moyles suffered any damage to their crops by being deprived of the water; that if plaintiffs were entitled to a reasonable rental value of the water, it should only be the rental value for the use to which the water had been put in the past; and that against the rental value, the City was entitled to credit for the value of the culinary water it furnished Moyles through the culinary pipes. We examine the record in the light of these contentions.
The City commenced an action to condemn Moyles' water rights. In that action they obtained from a competent court having jurisdiction of the parties and the subject matter, an order granting them immediate possession of the property sought to be condemned. Until such order was vacated 7 and set aside it became the duty of Moyles to respect the same, and to exercise no control over the property, to not hold possession thereof and to not use the water. It certainly does not lay in the mouth of the City, after obtaining such order to say that Moyles should have violated it. The City argues the matter as though the action was one for damages to crops for loss of irrigation water. Such is not the case. The water the City sought to condemn as shown by its complaint was potable water, suitable for culinary uses; the water it offered in return was lake water suitable only for irrigation, and when the lake juice was commingled with the creek water, all was unfit for culinary purposes. To thus render the water unfit for the purposes for which it had been suitable is pro tanto, dispossessing the owner of the use and benefit thereof. The point is urged that after the order granting the City possession, Moyle was still issued tickets by the watermaster for his irrigation turns the same as before the order, and therefore he was deprived of no water. This is specious argument. He does not sue for crop damage for lack of irrigation water. He had other irrigation water rights in the Big Cottonwood Tanner Ditch which he used for irrigating his crops, and which was sufficient for that purpose. The water right herein involved was a right in excess of what he required for irrigation during those years, and which he could have *Page 210 sold or rented had the City not taken the water. Likewise, fallacious is the argument that because this water was not turned into the City conduit it cannot be said that the City had possession thereof. Under its exchange agreement with the Big Cottonwood Tanner Ditch, the City was obligated to furnish the corporation with water in lieu of the water taken by it in the exchange. If the City used this Moyle water as part of the water it delivered to the corporation under the exchange agreement, it had possession of, and used the water just as definitely and absolutely as if it had put it in the watermains. The record shows conclusively that all creek water not diverted into the City mains under the exchange agreement was used by the City in supplying to the corporation the volume of water it was obligated to supply the corporation. And again, the City admits that during part of almost every year involved, the City commingled unpotable lake water with Moyles' canyon water; and for three years, to wit: 1936-1937-1938, the corporation as distributor of the waters of Big Cottonwood Tanner Ditch, which were the waters the city delivered to the corporation under the exchange agreement, did not even issue to Moyles a time or turn ticket for the 22 3/4 shares of water here involved, but distributed that time and water to other stockholders in the corporation. Furthermore the evidence is conclusive that after the City obtained the order for possession, Moyles did not draw or use any waters represented by the water rights involved in this action. The evidence justifies the finding and conclusion of the triers of the facts that the City had possession and use of the water rights here involved during the period of time involved in this action.
What then is the measure of damage for such use and possession? Certainly, since the City dismissed its action before adjudication of the value of the property, and surrendered possession of the property they had taken 8, 9 under the order, the measure of damages for the temporary dispossession would not be the value of the property had they completed the suit and made their possession *Page 211 permanent. This is evident from the provisions of Sec. 104-61-10, U.C.A. 1943, which provides plaintiff must
"Pay all damages arising from occupation before judgment in case the premises are not condemned." See Utah Copper v.Montana-Bingham Consol. Mining Co., 69 Utah 423, 255 P. 672,677.
Under general principles, as well as under our statute, the condemner cannot deprive the owner of compensation by dismissal after possession has been taken. See 30 C.J.S., Eminent Domain, § 335. The City should respond in damages under our statute for all damages caused by the taking and holding possession. Centralia C.R. Co. v. Henry, 31 Ill. App. 456, 30 C.J.S. Eminent Domain, § 16, 20 C.J. 1087. Only the losses inflicted on the owner by the institution of the action and possession of the property are recoverable. Pittsburgh's Petition, 243 Pa. 392, 90 A. 329, 52 L.R.A., N.S. 262; 30 C.J.S., Eminent Domain, § 339. Among such items is loss of rents. Simpson v. Kansas City, 111 Mo. 237,20 S.W. 38; and deprivation of the use of the property.Winkelman v. Chicago, 213 Ill. 360, 72 N.E. 1066;Pittsburgh's Petition, supra; 30 C.J.S., Eminent Domain, § 339, p. 17, 20 C.J. p. 1088 and notes 10 and 12. That the reasonable rental value of property, the possession, use and control of which has been withheld from the owner or lawful possessor is a proper measure of damage for such withholding, in the absence of claims of special damage, is too elemental to require citation of authority.
But the City contends that Moyles should be limited to the reasonable rental value of the water for the use to which they had put the property before the City took possession. By that process of reasoning if any action commenced in 1932 (when prosperity was just around the corner) had 10, 11 involved condemnation of a lot and five room dwelling in Salt Lake City, and possession taken by the condemnor and held until 1946, the condemnee would for all the years be held to the $25 rents received in 1932, despite the fact that for half of the time he was kept out of possession the property would have rented for $100 to *Page 212 $125 per month. A simple statement of the case is its own answer. It is elemental in eminent domain cases, that the owner is entitled to the value of the property for the highest and best use to which it could be put at the time of the taking, and is not limited to the use then actually made of it. In the case ofShurtleff v. Salt Lake City, 96 Utah 21, 82 P.2d 561, we answered the argument adversely to the position of the City. That case also disposes of the next point urged by the City that Moyles were offered other water which was suitable for irrigation although not for other purposes.
We note one further point raised by the City. It contends that it furnished Moyles potable water through pipes for domestic and culinary purposes, and since lake water was available for irrigation they suffered no damage. The culinary water furnished Moyles through the pipes was water they were 12 entitled to receive under the exchange agreement by virtue of the stock they held in the corporation and was not furnished them in connection with this suit or the water here involved. Some other points are raised by the City. We have examined them and find them without merit.
The judgment is affirmed. Costs to respondent.
McDONOUGH and WADE, JJ., concur.