Ogden Livestock Shows v. Rice , 108 Utah 228 ( 1945 )

I concur in the result reached in the opinion of Judge MORRISON. I agree with Mr. Chief Justice LARSON that the defendant was not negligent in failing to discover any defect in the bridge and that his inspection was such as to preclude a finding by the trier of the facts that it 2 was not such as to meet the requirements of the law as to discovery of defects; but since I am of the opinion that the trier of the facts was not bound to conclude that the bridge collapsed because of the giving away of the deteriorated laminated deck, but may have reasonably found that it gave way because of it being subjected to a strain in excess of its designed capacity, I am of the opinion that the judgment below should be upheld.

At the outset it is necessary to ascertain the legal relationships of the parties involved regarding the use of the damaged bridge for the rights and duties of the parties must be determined in light of such relationships. The land upon which the bridge was located was and is owned by the Union Stockyards. The plaintiff, Ogden Livestock Shows, Inc., constructed a coliseum building on some of the lands owned by the Union Stockyards. On December 1, 1925, these two companies entered into a lease agreement under which the plaintiff was given a right of way across the lands of the Union Stockyards as a means of ingress and egress to and from the coliseum building.

In order to travel from 24th Street in Ogden to the coliseum building over the described right of way, it was necessary to cross a canal. The plaintiff, in order to make its rights under the lease effective, constructed a bridge over the canal. It is this bridge which the defendants damaged. This lease agreement does not mention the bridge or make any express reference to the building of one. However, the owner, of the dominant estate can make such changes on the servient tenement as are necessary for the proper exercise of the easement. Willard v. Stone, 253 Mass. 555, 149 N.E. 681; Missionary Soc. v.Evrotas, 256 N.Y. 86, 175 N.E. 523.

The right of the stockyards corporation to use the easement as distinguished from the bridge is clear for in this regard the lease expressly provided that the easement was "subject to the joint use of both" the stockyards corporation and the plaintiff. Even aside from such an express provision the right of the stockyards corporation to use the easement could not be questioned. See Stevens v. Bird-Jex Co., 81 Utah 355,18 P.2d 292; Tiffany Law of Real Property, 3rd Ed., Vol. 3, Sec. 811, p. 355.

The defendants are at the most permittees of the stockyards corporation. Defendant Rice was an independent contractor doing construction work for the stockyards corporation. Defendant Wade was delivering a load of cement to defendant Rice and must be held to have been a business invitee of Rice. Thus it can be noted that the plaintiff, occupying the position of the dominant estate holder, constructed a bridge in order to make the grant of the right of way effective. The servient estate holder, the stockyards corporation, reserved a right of joint user over this way. The defendants using the right of way as permittees of the stockyards corporation, had no better right to use the bridge than did the stockyards company. Our problem is one of determining the limitations on the right of the stockyards company to use the bridge.

The case of Herman v. Roberts, 119 N.Y. 37, 23 N.E. 442,443, 7 L.R.A. 226, 16 Am. St. Rep. 800, involved a similar problem. There the plaintiff had been granted a right of way over the lands of the defendant. The way was rocky and unsuited to travel. Plaintiff, at considerable work and expense, prepared the way so that it could be used for a carriage road, although the grant did not expressly provide that such a road should be constructed. After the work was completed the defendant commenced to use the road by taking heavy loads over it. These heavy loads damaged the roadway and increased the costs of upkeep and repair. Suit was brought by the plaintiff, dominant estate holder, to enjoin the use of the roadway by the defendant, servient estate holder. The court in an excellent discussion sets forth the respective rights and duties of the parties. The court said:

"The idea of a joint use of the land by both parties, in the sense that a use by the grantee should at any time give way to a use by the grantor, is contrary to the plain meaning and intent of the grant. It cannot be supposed that the grantor, when conveying a right of way over an impassable tract of land, intended to restrict his grantee from changing its surface so as to make it passable and available for the purpose of a road, or that, after the road had been so constructed, he had the right to enter upon the land and impair its usefulness, or impose upon the grantee the duty of keeping such impaired road in repair for the benefit of the grantor. The full extent of the rights of the grantor in the soil of the road was to enter thereon, and do such acts only as should not injure or impair the enjoyment of the easement by the grantee, and when he went beyond such use he transcended the rights pertaining to his character as the owner of the soil. The general character of these rights is familiar to all owners of land, because they are common to all whose lands abut upon public roads, and they are varied only by the character of the easements enjoyed, and the terms of the grants under which they are possessed. Unless, therefore, something can be found in the terms of the grant which modifies the easement created, that must be held to be the measure of the rights of the parties. No inference can be drawn from the present grant that it was intended that the grantor should enjoy the unrestricted use of the road, with the privilege of so wearing and using it as to subject the grantee to the labor and expense of keeping it in repair. It is apparent from the character of the property affected, and the use to be made thereof, that the plaintiff expected to construct a carriage road for access to and communication with his residence as a gentleman's country seat. It could not have been contemplated by the parties that such a road was to be used for farming purposes, to draw heavy loads over, and cut it up by the use of the various appliances needed for such purposes. The land over which the road was laid out had never before been so used, and the owner of the soil had theretofore obtained access to his land from the public road by entering upon and traveling over it in other places. The land itself was of small compass, and little value, as it was hilly, rocky, sterile, and unadapted to agricultural uses; and it could not, under the circumstances, have been intended that the road was to be built and used to any considerable extent for farming purposes by either the grantor or grantee.

* * * * * "It is not supposed that it was the intention of the court below to wholly preclude the defendant from the use of the road-way by passing over or across it in such manner as should not materially obstruct passage or injure the road-bed; but it was only intended to prevent an unreasonable use thereof which should sensibly impair its condition, or render its use offensive and impracticable to the plaintiff and others having lawful occasion to pass over it."

From this holding it appears that the servient estate owner has the right to use a way constructed by the dominant estate owner for the purpose of making the grant of the way effective. This right of use by the servient estate owner is, however, limited to those uses which do not interfere with the use of the way by the dominant estate holder nor injure the roadbed; that the dominant estate owner could by injunction prevent any unreasonable use of the way which should "sensibly impair its condition." A similar statement was made by this court inStevens v. Bird-Jex Co., 81 Utah 355, 18 P.2d 292, in which we noted that the servient estate owner,

"may himself use the way, or permit others to do so, subject to the limitation that his use or the use of his permittee must not be such as to impair the enjoyment of the easement by the owner of the dominant estate, or subject him to extra expense in keeping it in repair, and it is not necessary that he expressly reserve such right."

Applying these holdings to the instant case, it would appear that the stockyard corporation (servient estate holder) had the right to use the bridge or permit others to do so, subject to the limitation that the use should not materially obstruct the use by the plaintiff (dominant estate holder) or subject the bridge to unreasonable use which "should sensibly impair its condition."

No case has been cited by counsel involving a suit for damages to a bridge caused by overloading. Research indicates that few such cases can be found. There are, however, a few such cases which are helpful.

In Thompson v. Matthews, 2 Edw. Ch., N.Y., 212, the defendants were hauling extra heavy loads of rock over the toll bridge of the plaintiff. Plaintiff sought to enjoin the use of the bridge for the hauling of such heavy loads. The Vice-Chancellor refused to enjoin. It was concluded that the bridge was a public one even though the plaintiff could collect tolls. The court then stated:

"But this is a case in which the parties have legal rights. The bridge is a public one. If persons take improper loads and the bridge has been properly constructed, then the owners of it have a remedy by a special action on the case or in trespass for damage done; while, on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the owners must respond in damages. The law affords a reciprocal remedy in all such cases; and I shall leave the parties to their legal right."

Township of Livingston v. Parkhurst, 122 N.J.L. 598,7 A.2d 627, is another case involving damage to a public bridge from overloading. The case involved a suit by the township for damages caused by the overloading of a small wooden bridge. The bridge had a capacity of 15 tons but its capacity was not posted. It was fairly well constructed and in good condition. The bridge was designed to handle passenger cars, delivery trucks and coal trucks. The defendants took a truck hauling a 28 to 30 ton shovel across the bridge causing it to collapse. The trial court non-suited the plaintiff. On appeal the judgment of the lower court was reversed. The holding of the Supreme Court was that there was a duty on the part of one using the highways and public bridges to use them with reasonable care.

These last two cited cases stand for the proposition that even a public bridge must be used reasonably. One taking unreasonably heavy loads upon the bridge is held liable for any damages occasioned from the overloading. The defendants in the instant case as permittees of the servient estate owner would be held at least to as high a duty as the user of a public bridge.

There is another line of cases holding that to take extraordinarily heavy loads over a public highway or bridge so as to damage them is a public nuisance. See Commonwealth v.Allen, 148 Pa. 358, 23 A. 1115, 16 L.R.A. 148, 33 Am. St. Rep. 830; Henry Butt Co., Ltd. v. Weston-Super-Mar Urban Dist.Council, 1922, 1 A.C. 340. The same view is set forth in 3 Salk. 182, 91 Eng. Reprint 764, where, without noting the particular case referred to it is stated:

"Information against a common carrier, setting forth that no wagon ought to carry more than 2000 weight; and that the defendant used a wagon with four wheels, and cum inusitato numero equorum, in which he carried 3000 or 4000 weight at one time, by which he spoiled the highway leading from Oxford to London * * *. This was adjudged good * * * because it was the excessive weight which he carried that made the nuisance."

See also Sumner County v. Interurban Transp. Co.,141 Tenn. 493, 213 S.W. 412, 5 A.L.R. 765, in which the court held that while the legislature had the right to restrict the use of the public roads by trucks carrying extra heavy loads the court could not enjoin such use in the absence of legislation. The county had sought to enjoin the use of the county highways by trucks carrying excessive loads which were damaging the highways.

It appears fundamentally sound to restrict the use by the servient tenant or his permittees of a way prepared and maintained by the dominant tenant. Unrestricted use of the way by the servient tenant, without regard to the increased burden of upkeep and repair, could in effect destroy the grant of the way. In the absence of some provision in the grant which would indicate that the servient tenant was to have unrestricted use of the way with the right to so use as to increase the expense of upkeep and repair no such right should be inferred. The use of the way by the servient tenant should be limited to those uses which will not unreasonably interfere with the use of the way by the dominant tenant. If the servient tenant or his permittees use the way so as to damage it (such as by overloading the bridge) he should respond in damages unless it appears that the damage was entirely without fault on his part.

The facts indicate that the parties contemplated that the plaintiff in this case would have to construct a bridge in order to make the way usable. There is, however, nothing to indicate that the bridge was to be designed to hold any and all loads which the servient tenant might bring upon his lands. The servient tenant had the right under the above cited cases to use the way and the bridge — but the use was limited by the design and constructed capacity of the bridge. The use was to be the use to which the bridge was normally and ordinarily adapted. If the defendants, as permittees of the servient tenant, went beyond the scope of this use to which the bridge was adapted, they should be held liable for all resulting damage. The absolute limitation of the right of the defendants to use the bridge was to use it in accordance with the uses to which it was reasonably adapted. If they went beyond this, they are in effect trespassers. Thus, if the bridge had a designed capacity of ten tons, as Campion's testimony is reasonably susceptible of being construed, then the defendants were liable for taking 15 tons upon it. This should not be made to depend upon whether the bridge, in the eyes of an ordinary truckman, looked as though it would hold the 15 ton load. Defendants had no right to gamble with the plaintiff's property. They had no right or license to take excessive (in excess of its designed capacity) loads over the bridge. To do so was a trespass. If Campion's testimony can be construed as evidence that the bridge was designed to hold a maximum of 10 tons, the defendant Wade should be held liable, without regard to any possible error in judgment, for it is not disputed that he took a 15 ton load upon the bridge.

A witness, Campion, who rebuilt the bridge after its collapse, and who was experienced in building such structures testified on cross-examination that the bridge in his opinion would carry "six, eight, or ten ton loads, or something like that without any trouble." This testimony was brought out on cross-examination. Of course, no assignment is made as to its admissibility, since defendant elicited it. If the trial court was satisfied that in light of this testimony and of the facts and circumstances relative to the collapse of the structure, the defendant drove onto the bridge a load in excess of its designed capacity, its finding in that regard should not be by us disturbed. Furthermore, as stated at the outset, the evidence is not such as to compel a finding by the trial court that the giving away of the laminated deck was the cause of the collapse, and but for its condition the bridge would not have broken.

WOLFE, Justice, concurs in the views expressed by Mr. Justice McDONOUGH.