Old Jordan Mining Milling Company v. Societe Anonyme Des Mines De Lexington

This was an action originally brought in the district court for the Third judicial district of the territory of Utah by the Soci et e Anonyme des Mines de Lexington, a French corporation, against the Old Jordan Mining & Milling Company, to recover one-half the expense of certain repairs made to a canal or water ditch owned by them in common.

The complaint alleged: That since the month of March, 1883, these parties had continuously been tenants in common, owning an equal, undivided interest in a certain canal, known sometimes as the 'Galena,' sometimes as the 'Old Telegraph Canal,' and sometimes the 'Old Jordan Canal,' together with the right of way and adjacent lands. That between the 22d of October, 1883, and November 5, 1883, they entered into a contract in writing, in which it was agreed that they would make repairs, etc., and that each should pay one-half of the expense thereof. That in the year 1884 the plaintiff made certain repairs, of the value of $993.93; in 1885, of the value of $4,025; in 1886, and until June, 1887, $4,826.95; and in 1887, from June 30th to December 31st, $500 aggregating $10,345.88, for its share of which a statement or bill of items was furnished to the defendant. That the said defendant, on the 31st of December, 1884, paid to plaintiff $496.96, its half of the amount expended in 1884, but failed to pay its half of the other expenses incurred as aforesaid, leaving a balance due of $4,675.98, for which judgment was demanded.

An answer was filed, specifically denying the several averments of the complaint; and subsequently an amendment was made, alleging that from the 1st of January, 1885, plaintiff had appropriated to its own use, without defendant's consent, all the water flowing through said ditch or canal, and that the reasonable value of that portion of the said water owned by defendant was $10 per day. The answer also made other allegations, not necessary to be considered as the case was presented to this court.

In support of the contract alleged in the complaint, plaintiff put in evidence the following letter, written by its manager to the manager of the defendant under date of October 24, 1883: 'Dear Sir: During my present stay in this city, for the purpose of investigating and inspecting our different pieces of property in this territory, my attention was particularly called to the bad state of the Jordan water ditch, which your and our companies own jointly. Considering that it is for our mutual interest to see that this property should be kept in proper shape, I beg you, in the name of your company, if you do not judge that it would be advisable, while I am here, to have an understanding regarding this matter. I suggest that the necessary repairs should be done at once, and that hereafter the ditch should be kept in good condition, both companies paying their share of the incurred expenses.

'Will you please be kind enough to give this matter your prompt attention, and favor us with an immediate reply, as I shall remain here only until the 15th of November.'

To this letter the defendant's manager made the following reply:

'Cleveland, O., Oct. 30th, 1883.

'Mons. Eng. Renevey, l'Administrateur D el egu e de Soci et e des Mines de Lexington: Your letter of 24th inst., in regard to the necessity of entering into some arrangement for repairing and preserving the Jordan water canal, owned by your company and the one I represent, is rec'd. I agree with you that it is for our mutual interest that this property should be kept in good order, and I shall be pleased to join you in a reasonable arrangement for the purpose of protecting the property from decay, and I am very glad to find a gentleman willing to co-operate in a business way for the protection of our mutual interests. Your suggestion that the needed repairs should be done at once, and that each company pay its share of expense, and also for care for the future, is right; and I will direct Mr. Van Deusen, our engineer, to co-operate with you, or any one you may delegate, to examine the property and report what repairs are necessary, and the cost of the same. He is a very sary, and the cost of the same. He is a very trustworthy and capable man, and I think you under his judgment, and let him make the repairs. As neither of us are using the water at present, I would think it best to expend only so much as is necessary to prevent loss, and then, when we are ready to use the water, then we make permanent improvements. If you do not have time to go into details before you leave, will you please leave the matter in the hands of some one who will co-operate with me and Mr. Van Deusen, unless you are willing to bave him do it, and each company pay one-half the expense.

'I make this suggestion because I think Mr. Van Deusen can do the work satisfactory to both.

'Regretting that my absence from Salt Lake prevents me from a personal consultation with you, I am.'

Other correspondence and evidence were introduced, which are fully set forth in the opinion of the court.

The case was tried before a jury, and a verdict rendered in favor of the plaintiff for the sum of $6,028.76, upon which a remittitur was filed of $12.35, and judgment thereupon entered in the sum of $6,016.41.

Upon appeal to the supreme court of the territory, this judgment was affirmed. 9 Utah, 483, 35 Pac. 492. Whereupon defendant sued out a writ of error from this court.

L. T. Michener, for plaintiff in error.

J. M. Wilson, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.